Citation Nr: 1329224 Decision Date: 09/12/13 Archive Date: 09/20/13 DOCKET NO. 12-09 105 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE Entitlement to an initial rating in excess of 70 percent for posttraumatic stress disorder (PTSD). REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD Andrew Larson, Associate Counsel INTRODUCTION The Veteran had active service from November 2000 to November 2004. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a February 2010 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida which granted the Veteran's claim for service connection for PTSD with an evaluation of 70 percent effective October 5, 2009. 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 The Veteran does not suffer from total occupational and social impairment as a result of his PTSD. CONCLUSION OF LAW The criteria for an initial evaluation in excess of 70 percent for PTSD have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 4.1, 4.2, 4.7, 4.130, Diagnostic Code 9411 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION I. Procedural Duties The Veterans Claims Assistance Act of 2000 ("VCAA"), codified in part at 38 U.S.C.A. §§ 5103, 5103A, and implemented in part at 38 C.F.R. § 3.159, amended VA's duties to notify and assist a claimant in developing information and evidence necessary to substantiate a claim. With respect to VA's notice obligations, because the matter at issue in this case concerns an appeal of an initial rating, VCAA notice obligations were fully satisfied once service connection was granted. Dingess/Hartman v. Nicholson, 19 Vet. App. 473, 490 (2006) (holding that once a decision awarding service connection and assigning a disability rating and an effective date has been made, the section 5103(a) notice has served its purpose, and its application is no longer required because the claim has been substantiated). The record here does not show, nor does the Veteran or his representative contend, that any notification deficiencies have resulted in prejudice. See Goodwin v. Peake, 22 Vet. App. 128 (holding that the veteran bears the burden of demonstrating any prejudice from defective VCAA notice with respect to the downstream elements such as the disability rating and effective date). To satisfy its duty to assist, the VA must make reasonable efforts to assist the claimant in obtaining evidence necessary to substantiate a claim. 38 U.S.C.A. § 5103A. This includes assisting the claimant in obtaining necessary medical examinations and opinions. Id. In this case, the Board concludes that the duty to assist has also been met. The totality of the Veteran's VA and private treatment records has been obtained. He was given appropriate VA examinations on two occasions, both of which were made after reviewing the entire claims folder. Contained in the examination reports are relevant opinions by the examiners. The examinations addressed the appropriate rating criteria found in 38 C.F.R. § 4.130. There is no indication that there is any relevant evidence outstanding in these claims and the Board will proceed with consideration of the Veteran's appeal. II. Merits of the Claim Evaluations are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities, found in 38 C.F.R., Part 4. The rating schedule is primarily a guide in the evaluation of disability resulting from all types of diseases and injuries encountered as a result of or incident to military service. The ratings are intended to compensate, as far as can practicably be determined, the average impairment of earning capacity resulting from such diseases and injuries and their residual conditions in civilian occupations. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. 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 for that rating. 38 C.F.R. § 4.7. In considering the severity of a disability, it is essential to trace the medical history of the Veteran. 38 C.F.R. §§ 4.1, 4.2, 4.41. Consideration of the whole-recorded history is necessary so that a rating may accurately reflect the elements of disability present. 38 C.F.R. § 4.2; Peyton v. Derwinski, 1 Vet. App. 282 (1991). While the regulations require review of the recorded history of a disability by the adjudicator to ensure a more accurate evaluation, the regulations do not give past medical reports precedence over the current medical findings. Where an increase in the evaluation is at issue, the 'present level' of the Veteran's disability is the primary concern. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). However, where VA's adjudication of an increased rating claim is lengthy, a claimant may experience multiple distinct degrees of disability that would result in different levels of compensation from the time the increased rating claim was filed until a final decision on that claim is made. Thus, VA's determination of the 'present level' of a disability may result in a conclusion that the disability has undergone varying and distinct levels of severity throughout the entire time period the increased rating claim has been pending. Hart v. Mansfield, 21 Vet. App. 505 (2007). Similarly, as is the case here, where a Veteran appeals the initial rating assigned for a disability at the time that service connection for that disability is granted, evidence contemporaneous with the claim and with the initial rating decision granting service connection would be most probative of the degree of disability existing at the time that the initial rating was assigned and should be the evidence 'used to decide whether an original rating on appeal was erroneous . . . .' Fenderson v. West, 12 Vet. App. 119, 126 (1999). If later evidence indicates that the degree of disability increased or decreased following the assignment of the initial rating, 'staged' ratings may be assigned for separate periods of time based on facts found. Id. The Veteran's PTSD has been rated as 70 percent disabling throughout the rating period on appeal. He believes he is entitled to a higher initial rating. His PTSD is rated under the General Rating Formula for Mental Disorders- specifically under 38 C.F.R. § 4.130, DC 9411. In addition, the Fourth Edition of the American Psychiatric Association 's Diagnostic and Statistical Manual for Mental Disorders (DSM-IV) provides guidance for the nomenclature employed within 38 C.F.R. § 4.130 . When evaluating a mental disorder, the evaluation must be 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. 38 C.F.R. § 4.126(a). Further, when evaluating the level of disability from a mental disorder, the extent of social impairment is considered, but the rating cannot be assigned solely on the basis of social impairment. 38 C.F.R. § 4.126(b). Under the General Rating Formula, a 70 percent rating requires 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 work like setting); and inability to establish and maintain effective relationships. 38 C.F.R. § 4.130, DC 9411. The maximum 100 percent rating requires 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 minimal personal hygiene); disorientation to time or place; and memory loss for names of close relatives, own occupation, or own name. Id. The use of the phrase "such symptoms as," followed by a list of examples provides guidance as to the severity of symptomatology contemplated for each rating. In particular, use of such terminology permits consideration of items listed as well as other symptoms and contemplates the effect of those symptoms on the claimant's social and work situation. See Mauerhan v. Principi, 16 Vet. App. 436 (2002); see also 38 C.F.R. § 4.130. The Federal Circuit recently clarified that the General Rating Formula for Mental Disorders requires not only (1) sufficient symptoms of the kind listed in the percentage requirements, or others of similar severity, frequency or duration; but also (2) that those symptoms cause the level of occupational and social impairment specified in the regulation. See Vazquez-Claudio v. Shinseki, 713 F.3d 112, 118 (Fed. Cir. 2013). In evaluating the evidence, the Board also has considered various Global Assessment of Functioning (GAF) scores contained in the DSM-IV which clinicians have assigned to a veteran. A GAF score is a scaled rating reflecting the "psychological, social, and occupational functioning on a hypothetical continuum of mental health-illness." Richard v. Brown, 9 Vet. App. 266, 267 (1996) (citing DSM-IV at 32). An examiner's classification of the level of psychiatric impairment at the moment of examination, by words or by a GAF score, is to be considered, but it is not determinative of the percentage VA disability rating to be assigned; the percentage evaluation is to be based on all the evidence bearing on occupational and social impairment. See generally 38 C.F.R. § 4.126; VAOPGCPREC 10-95. Generally speaking, the higher the GAF score, the higher the overall functioning of the individual. A score of 50-41 illustrates "[s]erious 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)." DSM- IV at 46-47. See 38 C.F.R. § 4.130. A score of 31-40 illustrates "[s]ome impairment in reality testing or communication (e.g., speech is at times illogical, obscure, or irrelevant) OR 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)." Id. The Board has thoroughly reviewed all the evidence in the Veteran's claims file. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, all of the evidence submitted by the Veteran or on his behalf. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). The analysis below focuses on the most salient and relevant evidence and on what this evidence shows, or fails to show, on the claims. The Veteran must not assume that the Board has overlooked pieces of evidence that are not explicitly discussed herein. See Timberlake v. Gober, 14 Vet. App. 122 (2000). Since 2009, the Veteran has had two VA Compensation and Pension examinations for PTSD, the first of which came in January 2010. There, the Veteran was diagnosed with PTSD by a VA psychologist and assigned a GAF score of 38. The examiner reviewed the Veteran's claims file. Symptoms of insomnia, exhaustion, the inability to relax, anger outbursts, irritable mood, and suicidal thoughts were all noted. The Veteran reported a strained relationship with his wife, which caused him anger that resulted in him punching holes in the walls. He also reported little connection with his children. The Veteran stated he had no close friends and no interactions with people, reporting that he preferred to be alone. He stated "my pleasure is killing pigs; what's wrong with me?" The examiner noted past suicide attempts and multiple fights. The Veteran reported heavy binge drinking as a means to escape. The Veteran's appearance was clean and he had clear and coherent speech. The Veteran was intact to person, time, and place. He reported constant nightmares resulting severe sleep impairment. The examiner noted the Veteran had obsessive/ritualistic behavior, as he stated he carried his gun around with him everywhere in his home, even in the bathroom. The examiner noted that the Veteran did not suffer from hallucinations or behave inappropriately. The examiner noted that he suffered from severe panic attacks more than twice a week. He also noted the Veteran had homicidal thoughts, with no plan or any particular victim in mind. The examiner noted the Veteran had the ability to maintain minimum personal hygiene. The Veteran's recent memory was marked as "mildly impaired." The Veteran reported problems at work, including difficulty following instructions and acting out verbally. The examiner noted the Veteran had recurrent and intrusive distressing recollections of his traumatic event, recurrent dreams of said event, feelings that the event was recurring, and intense psychological distress at exposure to internal or external cues that symbolize the event. He further expounded that the Veteran made efforts to avoid thoughts, feelings, or conversations associated with his trauma; made efforts to avoid activities, places, or people that arouse recollections of the trauma; was unable to recall aspects of the trauma; possessed feeling of detachments from others; and had a restricted range of affect and a foreshortened future. The Veteran possessed difficulty falling or staying asleep, irritability or outburst of anger, difficulty concentrating, hypervigilance, and an exaggerated startle response. The examiner did not mark that there was "total occupational and social impairment due to PTSD signs and symptoms," instead marking that PTSD signs and symptoms resulted in deficiencies in judgment, thinking, family relations, work, and mood. The Veteran was assigned a GAF score of 38. The Veteran's next VA examination came in May 2012. There, a VA psychologist filled out a Disability Benefits Questionnaire ("DBQ") for the Veteran after review of the entire claims file. The examiner noted that the Veteran was currently employed as a security guard, a position which he had held for the previous six years. The examiner diagnosed the Veteran with PTSD and assigned him a GAF score of 44. The examiner marked that the Veteran suffered from total occupational and social impairment with regards to his mental diagnoses. The Veteran described his strained marriage, noting he and his wife slept in separate rooms. He also stated that every door and window in his house had to be locked. The Veteran reported total avoidance of social contacts and activities. The Veteran stated he did not trust co-workers and "mimic[ked] what they do to get along." He reported constant arguments while at work. He preferred to work the night shift by himself, and only liked to leave his house during the night. The Veteran denied past suicide attempts, noting he accidentally set himself on fire once while drunk years before. He reported getting into physical altercations. The Veteran reported chronic binge drinking two to three days a week where he drank 12-15 beers per session. The examiner noted the Veteran's past homicidal thoughts. The examiner marked the Veteran reexperienced his traumatic event via recurrent and distressing recollections, recurrent distressing dreams, intense psychological distress at exposure to internal or external cues that symbolize the event, and physiological reactivity on exposure to internal or external cues that symbolize or resemble an aspect of the event. The examiner marked that the Veteran persistently avoided stimuli associated with his trauma as indicated by efforts to avoid thoughts, feelings, or conversations associated with the trauma; efforts to avoid activities, places or people that arouse recollections of the trauma; inability to recall an important aspect of the trauma; markedly diminished interest or participation in significant activates; feeling of detachment or estrangement from others; restricted range of affect; and sense of a foreshortened future. The examiner noted persistent symptoms of increased arousal, including difficulty falling or staying asleep, irritability or outburst of anger, difficulty concentrating, hypervigilance, and exaggerated startle response. The examiner concluded that the Veteran's PTSD symptoms caused clinically significant distress or impairment in social, occupational, or other important areas of functioning. The examiner noted the following additional symptoms: depressed mood; anxiety; suspiciousness; panic attacks that occur weekly or less often; panic attacks more than once a week; near-continuous panic or depression affecting the ability to functioning independently, appropriately and effectively; chronic sleep impairment; mild memory loss, such as forgetting names, directions or recent events; impairment of short and long-term memory; flattened affect; circumstantial, circumlocutory, or stereotyped speech; speech intermittently illogical, obscure, or irrelevant; difficulty in understanding complex commands; impaired judgment; impaired abstract thinking; disturbances of motivation and mood; difficulty in establishing and maintaining effective work and social relationships; difficulty in adapting to stressful circumstances, including work or a worklike setting; inability to establish and maintain effective relationships; obsessional rituals which interfere with routine activities; and intermittent inability to perform activities of daily living, including maintenance on minimal personal hygiene. In addition to the VA examinations, the Veteran has submitted three psychological evaluations from the same private psychologist. The first is from September 2009 and contains a detailed summary of the Veteran's background. It lists the following persistent reexperiencing symptoms for the Veteran: recurrent intrusive thoughts, flashbacks, recurrent nightmares, and cognitive and physiological responses to trauma cues. The following symptoms of persistent avoidance or numbing were noted: intensive effort geared toward avoidance of thoughts, feelings, conversations, activities, and places associated with his traumatic experiences; inability to recall important aspects of the trauma; a pattern of markedly diminished interest and participation in significant activates relative to his behavior prior to his military service; avoidance of fireworks; avoidance of social gatherings; feeling of detachment or estrangement from others; avoidance of family functions; and a sense of a foreshortened future. The following symptoms of persistent arousal were reported: insomnia; concentration problems; fear of trouble due to anger; hypervigilance; and exaggerated startle response. The Veteran reported that he felt as if he did not "offer anything." He reported general thoughts of suicide and homicide. He also reported anxiety attacks which occurred once every few days, ten minutes at a time. The examiner noted normal speech and formation of thought. The Veteran was marked as oriented to person, place, and time, with subpar attention capacities. Immediate memory appeared to fall below normal limits. The examiner diagnosed the Veteran with PTSD and assigned a GAF score of 39. The next private evaluation came in March 2010. There, the Veteran gave an update on his life, reporting that he felt he was "spiraling out of control." The Veteran again reported an extremely strained marriage, with his wife refusing to end the relationship only because she was afraid of leaving their child alone with him. The Veteran was given a GAF score of 39. The examiner concluded that the Veteran was permanently and totally disabled, with remote possibility of improvement. The Veteran's final private evaluation (from the same examiner on all three occasions) was in April 2012. The examiner again concluded that the Veteran was permanently and totally disabled, with remote chances to improve. The Veteran continued to describe "faking it" at work, or mimicking the actions and responses of others to get by. He continued to describe panic attacks and a propensity to get into fights. He stated that he did not feel anything towards his wife, son, or the remainder of his family and avoided all family functions. The Veteran reported disorientation to time. He also stated that he felt he would be fired from his job soon for anger issues. The Veteran reported variable alcohol use, including instances of "blackouts." He again reported thoughts of suicide and homicidal ideation, but nothing specific. The examiner again assigned a GAF score of 39. The Board finds that the weight of the evidence does not show the Veteran's PTSD has been so severe since the effective date of his award as to warrant a higher rating of 100 percent. While the Veteran has received opinions from both a VA psychologist and a private psychologist that label him as suffering from total occupational and social impairment, the fact remains that the record indicates the Veteran is still employed full time. He indicated at one examination that he was working 75 hours a week. Furthermore, the record is absent of instances of sufficient symptoms of the kind listed in the 100 percent rating criteria, or others of similar severity, frequency, or duration, such as gross impairment of thought process or communication, persistent delusions or hallucinations, grossly inappropriate behavior, persistent danger of hurting self or others, disorientation to place, and memory loss for names of close relatives, own occupation, or own name. This is in contrast to the 70 percent rating criteria, which contemplates several of the Veteran's symptoms, including suicidal ideation, obessional behavior, speech issues, constant panic attacks, depression, impulse control issues resulting in unprovoked irritability with periods of violence, and the inability to establish or maintain effective relationships. The Veteran was of normal intelligence and capable of articulating his thoughts. The majority of his GAF scores fell in the 31-40 range. His most recent score was a less severe 44. In addition to the medical evidence, the Board has considered the Veteran's personal assertions in support of his claim. He is competent, as a layman, to report on that as to which he has personal knowledge, such as nightmares, panic attacks, sleeping difficulties, anger, and irritability. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); Barr v. Nicholson, 21 Vet. App. 303, 310 (2007); and 38 C.F.R. § 3.159(a)(2). The Veteran has consistently stated he is easily startled, has sleep issues, feels uncomfortable recalling events from the war, is irritable, has anger issues, avoids social settings and interacting with people, has obsessive tendencies, and has little-to-no empathy for his family. He has consistently discussed his general suicidal thoughts and homicidal ideation. He has consistently denied experiencing delusions or hallucinations. However, even when considering all of the Veteran's PTSD symptoms, including intermittent inability to perform activities of daily living and disorientation to time, his symptoms did not cause total occupational and social impairment, to which a 100 percent disability requirement refers. See Vazquez-Claudio, 713 F.3d at 118 (the Veteran's psychiatric symptoms must cause the level of occupational and social impairment specified in the General Rating Formula). The Board cannot ignore that the Veteran has maintained full-time employment since 2006. The totality of the evidence points to the Veteran living a life severely impacted by his PTSD. Both his marriage, as well as his relationship with his child, appear to be in dire states. He does not have a social life to speak of. He suffers near constant panic attacks and there is record of both general suicidal thoughts and homicidal ideation in his file. He has trouble with anger in social settings at his place of employment. However, again, the Board cannot ignore that the Veteran has maintained full-time employment as a security guard since 2006. While medical opinions are no doubt persuasive, the Board must consider all evidence of record that bears on occupational and social impairment. See 38 C.F.R. § 4.126(a). Additionally, a rating cannot be assigned solely on the basis of social impairment. See 38 C.F.R. § 4.126(b). While the Veteran's disability has no doubt shattered his social life, he has maintained his full- time occupation since being diagnosed. He has expressed his fear of losing his job due to his irritability and anger issues, especially in his later examinations, but he has not yet lost his job or even suffered any sort of suspension. The VA and private examiners' opinions that the Veteran has total occupational impairment are belied by the fact the Veteran continues to work full time; therefore, the opinions are not found to be probative. Thus, the Board concludes that a 100 percent rating for PTSD is not appropriate at this time. The Veteran is encouraged to revisit this matter if his occupational status changes. In light of the foregoing, the Board finds that the evidence in this case is not so evenly balanced so as to allow application of the benefit-of-the-doubt rule as required by law and VA regulations. See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102 (2012). Therefore, the preponderance of the evidence is against the Veteran's claim for entitlement to an evaluation in excess of 70 percent and the claim must be denied. In reaching this decision, the Board has also considered whether an extraschedular rating is warranted. Bagwell v. Brown, 9 Vet. App. 157 (1996). The Board finds that there is no basis for further action on this question as there is no indication of an exceptional disability picture such that the scheduler evaluation for the Veteran's service-connected PTSD is inadequate. See Thun v. Peake, 22 Vet. App. 111, 115 (2008). The symptoms associated with the Veteran's PTSD are not shown to cause any impairment that is not already contemplated by the rating criteria. As noted in Mauerhan, the rating criteria do not contain an exhaustive list of symptoms associated with mental health disorder. Therefore, while the Veteran may exhibit some of the listed symptoms but the fact that other symptoms may not be listed does not render the symptoms unusual or exceptional. What must be considered more closely in terms of the criteria is how the symptoms impact the Veteran socially and occupationally. In this regard, the Board finds that the various symptoms endorsed by the Veteran, which has been discussed at length above, produce a level of impairment found within the rating criteria. There is nothing in his reported symptomatology or in how it affects him that is considered unusual or exceptional. For these reasons, referral for consideration of an extraschedular rating is not warranted in this case. The Board has also considered the holding of the U.S. Court of Appeals for Veterans Claims in Rice v. Shinseki, 22 Vet. App. 447, 453 (2009). To establish a total disability rating based on individual unemployability, there must be impairment so severe that it is impossible for the average person to follow a substantially gainful occupation. 38 C.F.R. § 3.340. In this case however, the Veteran has maintained his full-time employment since becoming service connected for his PTSD, and several years before that. Absent probative evidence of unemployability, consideration of a total rating based on individual unemployability due to service-connected disability is not warranted. The Veteran is again urged to revisit the issue of a total disability rating due to individual unemployability in the event that his occupational status changes. ORDER Entitlement to an initial rating in excess of 70 percent for PTSD is denied. ____________________________________________ P.M DILORENZO Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs