Citation Nr: 1329202 Decision Date: 09/12/13 Archive Date: 09/20/13 DOCKET NO. 09-42 409 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Houston, Texas THE ISSUE Entitlement to an initial rating in excess of 30 percent for posttraumatic stress disorder (PTSD). REPRESENTATION Appellant represented by: Texas Veterans Commission ATTORNEY FOR THE BOARD J. Nichols, Associate Counsel INTRODUCTION The Veteran served on active duty from November 1965 to March 1969. This matter comes to the Board of Veterans' Appeals (Board) on appeal from an October 2008 rating decision of the Department of Veterans' Affairs (VA) Regional Office (RO) in Houston, Texas, which, in pertinent part, granted service connection for PTSD and assigned a 30 percent disability evaluation, effective November 9, 2007. The Veteran initially requested a Board hearing that he subsequently cancelled. A review of the Veterans Benefits Management System (VBMS) reveals that there are pertinent VA psychiatric treatment records dating from August 2008 through March 2013. A review of the Virtual VA paperless claims processing system reveals documents that are either duplicative of the evidence of record or are not pertinent to the present appeal. FINDING OF FACT PTSD is productive of no more than occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks. CONCLUSION OF LAW The criteria for a PTSD rating in excess of 30 percent have not been met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107(b) (West 2002 & Supp. 2012); 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.10, 4.21, 4.125, 4.126, 4.130, Diagnostic Code (DC) 9411 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) provides that 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); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2012). Proper notice from VA must inform the claimant of any information and 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 C.F.R. § 3.159(b)(1); Quartuccio v. Principi, 16 Vet. App. 183 (2002). The Veteran's claim arises from an appeal of the initial evaluation following the grant of service connection. Courts have held that once service connection is granted the claim is substantiated, additional 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). Therefore, no further notice is needed under VCAA. Next, VA has a duty to assist the Veteran in the development of the claim. To that end, VA must make reasonable efforts to assist the 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 (2011); see Golz v. Shinseki, 590 F.3d 1317, 1320 (2010). Furthermore, "[t]he duty to assist is not boundless in its scope" and "not all medical records . . . or all [Social Security Administration (SSA)] disability records must be sought -- only those that are relevant to the [V]eteran's claim." Golz, 590 F.3d at 1320-21. Thus, although the Veteran indicated during the course of VA treatment in 2013 that he is receiving SSA retirement benefits in addition to working part-time, such SSA retirement records are not relevant to the present claim and do not need to be obtained. Pertinent treatment records have been obtained, to include recent VA Central Texas Healthcare System treatment records from 2008 to 2013. In addition to the evidence discussed above, the Veteran's statements in support of his claim are also of record. The Veteran was afforded VA examinations for his PTSD evaluation in June 2008 and January 2013. These examinations are adequate because they are based on consideration of the Veteran's prior medical history and described his PTSD disability in sufficient detail to enable the Board to make a fully informed evaluation of this disability. See Stefl v. Nicholson, 21 Vet. App. 120, 123 (2007). The Board finds that all necessary development has been accomplished, and therefore appellate review may proceed without prejudice to the appellant. See Bernard v. Brown, 4 Vet. App. 384 (1993). For the above reasons, no further notice or assistance to the appellant is required to fulfill VA's duty to assist the appellant 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). Laws and Regulations Disability evaluations are determined by evaluating the extent to which a Veteran's service-connected disability adversely affects his ability to function under the ordinary conditions of daily life, including employment, by comparing his symptomatology with the criteria set forth in the Schedule for Rating Disabilities (Rating Schedule). 38 U.S.C.A. § 1155; 38 C.F.R. §§ 4.1, 4.2, 4.10. If two evaluations are potentially applicable, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that evaluation; otherwise, the lower evaluation will be assigned. 38 C.F.R. § 4.7. The Veteran's entire history is to be considered when making disability evaluations. See generally 38 C.F.R. § 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1995). "Staged" ratings may are appropriate for any rating claim when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. See Hart v. Mansfield, 21 Vet. App. 505 (2007); Fenderson v. West, 12 Vet. App 119 (1999). As discussed below, the disability has not significantly changed and a uniform evaluation is warranted. The Veteran's PTSD is rated under 38 C.F.R. § 4.130, DC 9411. All psychiatric disabilities are evaluated under a general rating formula for mental disorders. Under the general rating formula, a rating of 30 percent is warranted when there is 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, mild memory loss (such as forgetting names, directions, recent events). A 50 percent rating 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. A 70 percent rating is warranted when the psychiatric disorder results in occupational and social impairment with deficiencies in most areas such as work, school, family relations, judgment, 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 an 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); and inability to establish and maintain effective relationships. A total schedular rating of 100 percent is assigned when the condition results in 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; intermittent inability to perform activities of daily living (including maintenance of mental and personal hygiene); disorientation to time or place; memory loss for names of close relatives, own occupation, or own name. The symptoms listed in the rating schedule are not intended to constitute an exhaustive list, but rather serve as examples of the type and degree of the symptoms, or their effects, that would justify a particular rating. See Mauerhan v. Principi, 16 Vet. App. 436 (2002). Thus, any analysis should not be limited solely to whether the symptoms listed in the rating scheme are exhibited; rather, consideration must be given to factors outside the specific rating criteria in determining the level of occupational and social impairment. In Vazquez-Claudio v. Shinseki, 713 F.3d 112, 117 (Fed. Cir. 2013), the Federal Circuit stated that "a veteran may only qualify for a given disability rating under § 4.130 by demonstrating the particular symptoms associated with that percentage, or others of similar severity, frequency, and duration." It was further noted that "§ 4.130 requires not only the presence of certain symptoms but also that those symptoms have caused occupational and social impairment in most of the referenced areas." Thus, "[a]lthough the veteran's symptomatology is the primary consideration, the regulation also requires an ultimate factual conclusion as to the veteran's level of impairment in "most areas." Id. at 118. The Global Assessment of Functioning (GAF) scale reflects psychological, social, and occupational functioning of a hypothetical continuum of mental health illness. See Richard v. Brown, 9 Vet. App. 266, 267 (1996) (citing the Diagnostic and Statistical Manual of Mental Disorders (4th ed. 1994) (DSM-IV). Throughout his appeal, the Veteran's GAF scores have ranged from 55 to 69. According to the DSM- IV, a score of 21-30 is indicated when behavior is considerably influenced by delusions or hallucinations 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). A GAF score of 31 to 40 is indicative of some impairment in reality testing or communication (e.g., speech is at times illogical, obscure, or irrelevant) or any major impairment in several areas, such as work or school, family relations, judgment, thinking or mood (e.g., depressed man avoids friends, neglects family, and is unable to work; child frequently beats up younger children, is defiant at home, and is failing at school). GAF scores between 41 and 50 reflect 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). GAF scores between 51 and 60 reflect moderate symptoms, (that is, flat affect, circumstantial speech, occasional panic attacks), or moderate difficulty in social, occupational, or school functioning (e.g., few friends, contacts with peers or co- workers). A GAF score of 61 to 70 indicates some mild symptoms (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, and has some meaningful interpersonal relationships. A GAF score of 71 to 80 indicates symptoms that are transient or expectable reactions to psychosocial stressors but no more than slight impairment in social, occupational or school functioning. Although GAF scores are important in evaluating mental disorders, the Board must consider all the pertinent evidence of record and set forth a decision based on the totality of the evidence. See Carpenter v. Brown, 8 Vet. App. 240, 242 (1995). An examiner's classification of the level of psychiatric impairment, by words or by a score, is to be considered, but is not determinative of the percentage rating to be assigned. VAOPGCPREC 10-95. The Board must assess the credibility and weigh all the evidence, including the medical evidence, to determine its probative value, accounting for evidence which it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the claimant. Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997), cert denied, 523 U.S. 1046 (1998); Wensch v. Principi, 15 Vet. App. 362, 367 (2001). Analysis The Veteran contends that his service-connected PTSD is more severe than the current ratings contemplate. Thus, the primary issue on this appeal is whether the overall impairment caused by the Veteran's PTSD more nearly approximate the criteria for a higher evaluation. For the following reasons, the Board finds that they do not. The Veteran was afforded a VA examination in June 2008. The examiner reviewed the Veteran's history, to include his stressors and symptomatology, and provided a detailed report of his findings. The Veteran exhibited symptoms such as occasional nightmares, recurrent memories, agitation, irritability, loss of interest in activities, and poor concentration. The symptoms were said to occur constantly and because of them, the Veteran stated that he did not feel like socializing with friends, was very short-tempered with his wife, and no longer enjoyed activities like fishing and camping. He also reported that he has trouble sleeping. The examiner noted that there were persistent efforts to avoid thoughts and feelings associated with his in-service stressor. There was a persistent, markedly dimished interest or participation in significant activities and a persistent feeling of detachment or estrangement from others. Due to the traumatic in-service event, the Veteran was noted to have problems falling or staying asleep and hypervigilence. Upon mental status examination, the Veteran was noted to have appropriate appearance, hygiene, behavior, and thought processes. Orientation, communication, memory, and thinking were normal. There were no delusions, hallucinations, obsessional rituals, homicidal or suicidal ideations. Panic attacks were absent and there was no suspiciousness or delusional history present. Affect and mood were abnormal with disturbance of motivation and mood; concentration was poor. The examiner assigned a GAF score of 65. In his closing remarks, the June 2008 examiner noted that mentally, the Veteran does not have difficulty performing activities of daily living. The Veteran's current psychiatric impairment was best described as psychiatric symptoms which cause occupational and social impairment with occasional decrease in work efficiency and intermittent inability to perform occupational tasks although generally the person is functioning satisfactorily with routine behavior, self-care and normal conversation. The impairment was evidenced by the fact that the Veteran has depressed moods and chronic sleep impairment. Otherwise, he had no difficulty understanding commands nor was he a danger to himself or others. Post-service treatment records from VA Central Texas Healthcare System reveal that, for the most part, the Veteran has exhibited no major changes in symptomatology from 2008 to 2013. A social worker's evaluation in October 2009 reveals a GAF score assignment of 55. The Veteran was noted to have hypervigilence and withdrawal from others. VA treatment records indicate that the Veteran was attending PTSD group therapy starting in 2009. A December 2009 social worker's note revealed a GAF score assignment of 69. The Veteran's psychiatric limitations were noted to be related to financial stress and difficulty coping with his PTSD through healthy mechanisms. Otherwise, the social worker noted that the Veteran was employed, had an adequate social environment, and good impulse control. A March 2010 treatment note revealed that the Veteran liked to be alone or only with his wife. He stated that life has been "pretty good" as he still participated in his hobbies. He denied having any suicidal or homicidal ideations or psychotic symptoms. He was noted to have fair insight and judgment. His GAF score was 65. Treatment records dating from November 2010 to March 2012 consistently mark a GAF score of 60. The Veteran had no thought disorders as he seemed logical and goal-directed. He consistently reported sleep issues and was being treated for it. He reported mood changes due to medications. The Veteran was afforded a recent VA examination in January 2013. After reviewing the medical history and examining the Veteran, the examiner assigned a GAF score of 62. The examiner noted that the Veteran experienced difficulty in establishing and maintaining work and social relationships, but he still noted that the Veteran exhibited occupational and social impairment that was still consistent with the 30 percent rating criteria - occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability perform occupational tasks although generally functioning satisfactorily. Anxiety, depressed mood, and chronic sleep impairment were also identified as present symptomatology. Furthermore, the January 2013 examiner reported that the Veteran has been employed part-time since 2007, and he is working in security, monitoring computer screens of activity. If anything inappropriate is observed, he files a report, and he works in a room with monitors and one to three other people, where he can choose to interact with them or not. He described his work as "boring" but "not stressful" and states that he is "okay with it." He reported being pleased with his work schedule and getting "good" reviews and no disciplinary problems. He also reported having benefitted from group therapy in the past, although he has not been attending it lately. The Veteran continued to complain of irritability, sleep difficulty, nightmares, and difficulty concentrating. The chronic sleep issues result in daytime sleepiness at work. Although he noted that he is not interacting much with friends on a routine basis, he continues to enjoy his hobbies, e.g., working in his workshop. He denied any panic attacks, history or mania, or psychotic symptoms. The examiner elaborated that the Veteran endorses satisfaction with his current work and appears to be functioning at his current job adequately based on his own report, particularly because he is working part time. The examiner suspected that the Veteran would have more problems with others and increased irritability issues if he were working in a more stressful or demanding environment or in a full time capacity. The above evidence reflects that the Veteran has had neither the symptoms nor overall impairment indicated by the criteria for a 50 percent rating or higher throughout the appeal period. There is no evidence demonstrating occupational and social impairment with reduced reliability and productivity due to symptoms such as circumstantial, circumlocutory, or stereotyped speech, panic attacks more than once a week (or any at all), difficulty in understanding complex commands, impairment of memory, impaired judgment or abstract thinking, and difficulty in establishing and maintaining effective work and social relationships. In fact, the Veteran is able to secure and maintain his part-time employment. He reported to have been performing his job well and endorsed satisfaction with it on most days. There has been no disciplinary actions against him and he reported receiving favorable reviews. Although irritability and sleep disturbances have increased over the course of the appeal, the record shows that such symptoms have not been productive of occupational and social impairment that is consistent with the aforementioned 50 percent criteria. The Veteran is still generally functioning satisfactorily in this arena. Furthermore, the evidence shows that the Veteran has been responding well to various forms of psychiatric treatment as he demonstrated treatment oriented/goal-directed behavior. He has not shown impaired judgment or impaired thinking, nor has he had difficulty understanding complex commands. It therefore cannot be said that the symptoms or overall level of impairment more nearly approximate the criteria for a 50 percent rating or higher. Neither the GAF score nor an examiner's characterization of the Veteran's level of impairment is dispositive or binding on the Board. See 38 C.F.R. § 4.126. The Board notes, however, that the Veteran's GAF scores have ranged from 55 (lowest) to 69 (highest). Such GAF scores and the VA examiners' characterization of the overall level of impairment are consistent with the evidence and the Board's findings. The medical and lay evidence as well as the GAF scores establish that there is 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 normal conversation). The Veteran's own statements to his treating physicians throughout the pendency of the appeal confirm this. The VA examiners' reports reflect that the Veteran has been able to secure and maintain gainful employment, and while irritability and sleep disturbances have increased, his overall occupational and social functioning has been affected only to the extent that these symptoms are present. For the most part, the Veteran functions satisfactorily with his routine behavior, self-care, and normal conversation. He may have depressed mood, anxiety, and chronic sleep impairment, but such symptoms are already enumerated and adequately contemplated by the 30 percent rating. The Veteran's symptomatology does not endorse the severity and types of symptoms as outlined in the 50 percent criteria or higher. Therefore, the Board does not find that the Veteran warrants a higher evaluation than 30 percent. See Vazquez-Claudio, 713 F.3d at 117-18; 38 C.F.R. § 4.130 (finding that an evaluation under 38 C.F.R. § 4.130 is "symptom-driven" meaning that "symptomatology should be the fact-finder's primary focus when deciding entitlement to a given disability rating" under that regulation). Moreover, based on the findings above, the medical evidence and the Veteran's statements even when accepted as credible do not establish occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood (70 percent rating criteria), nor do his statements establish total occupational and social impairment (100 rating criteria). In sum, the Veteran's symptoms are more characteristic of a disability picture that is contemplated by a 30 percent rating and no more. As to consideration of referral for an extraschedular rating, such consideration requires a three-step inquiry. See Thun v. Peake, 22 Vet. App. 111 (2008), aff'd sub nom, Thun v. Shinseki, 572 F.3d 1366 (Fed. Cir. 2009). The first question is whether the schedular rating adequately contemplates the Veteran's disability picture. Thun, 22 Vet. App. at 115. If the criteria reasonably describe the claimant's disability level and symptomatology, then the claimant's disability picture is contemplated by the rating schedule, the assigned schedular evaluation is, therefore, adequate, and no referral is required. If the schedular evaluation does not contemplate the claimant's level of disability and symptomatology and is found inadequate, then the second inquiry is whether the claimant's exceptional disability picture exhibits other related factors such as those provided by the regulation as governing norms. If the Veteran's disability picture meets the second inquiry, then the third step is to refer the case to the Under Secretary for Benefits or the Director of the Compensation and Pension Service to determine whether an extraschedular rating is warranted. The discussion above reflects that the symptoms of the Veteran's PTSD are fully contemplated by the applicable rating criteria. As shown above, the criteria include multiple psychiatric symptoms and encompassed the Veteran's psychiatric symptoms as shown in the VA examinations and VA treatment records. Consideration of whether the Veteran's disability picture exhibits other related factors such as those provided by the regulations as "governing norms" is thus not required and referral for consideration of an extraschedular rating for PTSD is not warranted. 38 C.F.R. § 3.321(b)(1). For the foregoing reasons, the preponderance of the evidence reflects that the Veteran's PTSD most nearly approximates the criteria for a 30 percent rating. The benefit-of-the- doubt doctrine is therefore not for application, and the claim for an initial rating higher than 30 percent for PTSD must be denied. See 38 U.S.C.A. § 5107(b); 38 C.F.R. §§ 3.102, 4.3, 4.7; Fagan v. Shinseki, 573 F.3d 1282, 1287 (Fed. Cir. 2009). ORDER Entitlement to an initial rating in excess of 30 percent for PTSD is denied. ____________________________________________ H. N. SCHWARTZ Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs