Citation Nr: 1329423 Decision Date: 09/13/13 Archive Date: 09/20/13 DOCKET NO. 12-30 360 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in New Orleans, Louisiana THE ISSUE Entitlement to an initial compensable rating for posttraumatic stress disorder (PTSD). REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD D. Johnson, Counsel INTRODUCTION The Veteran served on active duty from April 1970 to January 1971. This matter is before the Board of Veterans' Appeals (Board) on appeal of a June 2011 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). FINDING OF FACT Since the grant of service connection, the Veteran's PTSD has been productive of no more than moderate occupational and social impairment. CONCLUSION OF LAW The criteria for an initial rating of 30 percent, and no more, for PTSD have been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 3.159, 3.321, 4.3, 4.7, 4.130, Diagnostic Code (DC) 9411 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION Notice and Assistance 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. The appeal arises from the Veteran's disagreement with the initial evaluation following the grant of service connection. Once service connection is granted the claim is substantiated, additional notice is not required, and any defect in the notice is not prejudicial and will not be discussed. Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007); Dunlap v. Nicholson, 21 Vet. App. 112 (2007). The Veteran's service treatment records and VA medical treatment records have been obtained. He did not identify any private treatment records pertinent to the appeal. 38 U.S.C.A. § 5103A, 38 C.F.R. § 3.159. 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). A VA examination was conducted in May 2011; the Veteran has not argued, and the record does not reflect, that this examination was inadequate for rating purposes. 38 C.F.R. § 3.159(c) (4); Barr v. Nicholson, 21 Vet. App. 303, 307 (2007). The VA examination report is adequate for the purposes of deciding the claim on appeal because the examiner conducted a clinical evaluation, reviewed the medical history, and described the disability in sufficient detail so that the Board's evaluation is an informed determination. See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007); Stefl v. Nicholson, 21 Vet. App. 120, 124-25 (2007); Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). The Veteran does not allege, nor does the record show, that his disability has worsened in severity since this examination. Analysis Disability evaluations are determined by comparing a Veteran's symptoms with criteria set forth in VA's Schedule for Rating Disabilities, which are based on average impairment in earning capacity. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. Part 4 (2012). When a question arises as to which of two ratings apply under a particular diagnostic code, the higher of the two evaluations is assigned if the disability more closely approximates the criteria for the higher rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7 (2012). After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the Veteran. 38 C.F.R. § 4.3 (2012). The Veteran's entire history is reviewed when making disability evaluations. See generally 38 C.F.R. § 4.1 (2012); Schafrath v. Derwinski, 1 Vet. App. 589 (1991). Where, as here, the question for consideration is the propriety of the initial evaluation assigned, consideration of the medical evidence since the effective date of the award of service connection and consideration of the appropriateness of a staged rating are required. See Fenderson v. West, 12 Vet. App. 119, 126 (1999). In making all determinations, the Board must fully consider the lay assertions of record. A layperson is competent to report on the onset and continuity of his current symptomatology. See Layno v. Brown, 6 Vet. App. 465, 470 (1994). The Veteran's disability is currently rated under 38 C.F.R. § 4.130, DC 9411. Under DC 9411, a 0 percent rating is assigned when a mental condition has been formally diagnosed, but symptoms are not severe enough either to interfere with occupational and social functioning or to require continuous medication. A 10 percent rating is assigned for occupational and social impairment due to mild or transient symptoms which decrease work efficiency and ability to perform occupational tasks only during periods of significant stress; or symptoms controlled by continuous medication. A 30 percent rating is assigned for 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 assigned 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. A 70 percent evaluation is warranted for occupational and social impairment, with deficiencies in most areas, such as work, school, family relationships, 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); inability to establish and maintain effective relationships. Finally, a 100 percent evaluation is warranted for 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 ability 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. In assessing the evidence of record, it is important to note that the GAF score is a scale reflecting the "psychological, social, and occupational functioning on a hypothetical continuum of mental health-illness." Richard v. Brown, 9 Vet. App. 266, 267 (citing DIAGNOSTIC AND STATISTICAL MANUAL OF MENTAL DISORDERS, 4th ed. (DSM-IV) at 32). A score of 51-60 is assigned where there are "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. Historically, service treatment records do not show any diagnosis or treatment related to a psychiatric disorder. The post-service VA treatment records from 2010 to 2011 also do not reflect treatment for PTSD. In a letter dated in February 2011, a clinical therapist from the Shreveport Vet Center indicated that the Veteran had undergone individual and group psychosocial therapy in July 2008 for symptoms of sleep disturbances, flashbacks, emotional numbness, loss of interest in activities, survival guilt, difficulty concentrating, depression, feeling of uselessness, and drug and alcohol use. The therapist reported that the PTSD-related symptoms had affected the Veteran's marriage and social activities, and caused him to have difficulty concentrating and functioning in a social environment. The treatment records from the Vet Center show that about five sessions were conducted in July 2008 and that the Veteran reported symptoms as described above. The notes further reveal that the Veteran consistently denied any suicidal or homicidal ideation, audio and visual hallucinations, or inappropriate behavior. His mood ranged from euphoric to dysphoric; his affect ranged from flat to broad. He was always clean and fully oriented. In connection with the claim for service connection, the Veteran was scheduled for a VA examination in March 2011. The examiner noticed the smell of alcohol when the Veteran entered the office. The Veteran's speech was slurred and he had difficulty responding to questions. He indicated that he had been drinking. The examiner was unable to complete the examination because Veteran was unable to appropriately respond to questions. At a VA examination in May 2011, the Veteran reported symptoms of sleep impairment. He reported that he had been unable to develop or maintain relationships, and that he no longer enjoyed some activities that he used to, such as hunting. The Veteran stated that he had not seen his wife since their wedding day and was divorced. He did not have any children. His longest relationship lasted one year. As for his description of his social relationships, he stated "Got all kind of friends." He noted that he lived with his 90 year old mother. He enjoyed building things, restoring furniture, and watching television. He denied a history of suicide attempts. When asked about a history of violence he stated "I ran the bars. What do you think?" However, he specifically denied symptoms of anger and irritability and episodes of violence. He indicated he had not had any panic attacks in the last couple of years. On mental status examination, the Veteran was clean and casually dressed. Speech was slurred. Psychomotor activity was unremarkable. His attitude was cooperative. His mood was good and affect was normal. Attention was intact and he was oriented to person, place, and time. Thought process and content were unremarkable and no delusions or hallucinations were reported. Judgment and insight were intact. Impulse control was good. There were no episodes of violence. He denied homicidal and suicidal thoughts. He was able to maintain minimum personal hygiene. He was unable to interpret proverbs appropriately. He did not have obsessive/ritualistic behavior. His memory was normal. The examiner noted that based on the psychometric test data, the Veteran's PTSD symptoms were mild. However, the examiner also indicated that people with similar profiles have high levels of depression and anxiety; marginal levels of adjustment, and are reluctant to become involved with others. The examiner provided AXIS I diagnoses of PTSD; alcohol dependence; and alcohol-induced mood disorder. The alcohol- induced mood disorder was secondary to alcohol dependence. The Veteran's GAF was 60. The AXIS II diagnosis was personality disorder, not otherwise specified, with antisocial and schizoid traits. The examiner indicated that the PTSD contributed to the Veteran's relationship problems and his decreased quality of life. His alcohol dependence also contributed to his decreased quality of life, and his mood disorder was secondary to it. The examiner noted that it is not clinically or ethically possible to completely separate the functional deficits contributed by each disorder. The examiner also determined that the Veteran's prognosis was poor; however, he did not require continuous medication for control. Finally, the examiner indicated that there is no occupational impairment due to the PTSD symptoms. VA treatment records show outpatient treatment for PTSD beginning in 2012. An April 2012 note indicates that the Veteran denied thoughts of suicide. On psychosocial assessment in July 2012, he was found to be alert and oriented, but anxious. At a May 2012 psychological evaluation, the Veteran reported feelings of hopelessness, due to his finances, and impulsivity. He also reported insomnia. On mental status examination, he was fully oriented. His speech was normal. He was adequately dressed and groomed, and his attitude and behavior were appropriate. His mood was dysphoric and his affect was appropriate. Thought process was normal. Insight was adequate, judgment was intact, and impulsivity was good. The Veteran reported suicidal ideation occurred three to four times a week, but without plan or intent, and he indicated that such thoughts were "easily pushed away." The psychologist assessed his suicide risk to be low. The Veteran's GAF was 60. Another May 2012 clinic note shows the Veteran received a score of 28 on the Beck Anxiety Index, which was noted to be indicative of moderate to severe anxiety. He received a score of 35 on the Beck Depression Inventory, which was noted to be indicative of severe depression. An August 2012 clinic note shows the Veteran denied suicidal and homicidal ideation. However, the note also indicates that he endorsed suicidal ideations three to four times a week, but without plan or intent, and he indicated that such thoughts were "easily pushed away." Objectively, he displayed a dysphoric mood and appropriate affect. Based on a review of the evidence and the Veteran's entire history, the Board finds that since the grant of service connection, the Veteran's PTSD has manifested with symptoms that more closely approximate the criteria for a 30 percent rating. That is, his symptoms have resulted in no worse than moderate occupational and social impairment. See 38 C.F.R. §§ 4.1, 4.130 (DC 9411); see Fenderson, 12 Vet. App. at 126. The clinical findings contained in the VA outpatient treatment records and examination reports, as well as the Veteran's competent and credible lay statements, show the PTSD primarily manifests with symptoms of impaired sleep; anxiety, depression, and feelings of detachment from others (i.e. disturbance of mood); lack of interest in activities (i.e. disturbance of motivation); and some difficulty in establishing and maintaining relationships. All of these symptoms have resulted in no more than a mild to moderate degree of social and occupational impairment. These PTSD symptoms are accounted for in a disability rating of 30 percent, and are shown to have been present since the grant of service connection. The Board has considered whether ratings higher than 30 percent are warranted for any period during this appeal, but finds that the evidence does not support the assignment of a higher rating. While the May 2011 VA examiner indicated that people with similar psychometric profiles to the Veteran have difficulty in establishing and maintaining effective relationships, there is no indication that the Veteran himself is incapable of either establishing or maintaining effective social or work relationships, or that he is totally impaired due to PTSD. The Veteran has been able to maintain social relationships, despite his reported problems with relationships and self-perceived lack of emotions, as he has reported that he has "Got all kind of friends" and he resides with his mother. The Veteran has not asserted that he has any difficulty with work relationships specifically, and the VA examiner determined that the PTSD does not cause any occupational impairment. The evidence therefore does not suggest an inability to establish and maintain effective work and social relationships. Moreover, the Veteran's speech and insight are intact. Symptoms such as flattened affect, panic attacks, and difficulty in understanding complex commands have not been shown. The Veteran has not displayed difficulty with his memory. There is no current evidence in the record to suggest that he has had any periods of violence, despite his vague assertion that he "ran the bars;" disorientation, neglect of hygiene, stereotyped speech, inappropriate behavior, impaired judgment, impaired impulse control, impairment in short or long term memory, panic attacks or gross impairment in his thinking or communication. The Veteran does not contend otherwise. Significantly, the VA examiner's overall clinical impression was that the Veteran's PTSD symptoms were no more than mild in severity. Although the Veteran reported suicidal thoughts at his May 2012 psychosocial assessment, he stated that these thoughts are easily pushed away and the psychologist determined that his actual suicide risk is low. There is no other evidence of a history of suicidal ideation, thoughts, or attempts in the records. It is also significant to note that despite the Veteran's reported suicidal thoughts, the psychologist assigned a GAF of 60, thereby indicating that the overall severity of his symptomatology-including these thoughts- was no more than moderate. There is no other indication from the record, nor does the Veteran assert, that any thoughts of suicide cause significant distress or impairment in terms of social, occupational or other important areas of functioning such that his disability should be rated as severe, and thus higher than 50 percent. For the foregoing reasons, the Veteran is entitled to an initial evaluation for his PTSD of 30 percent, since the grant of service connection. At no point in time does the evidence show that the criteria for a rating higher than 30 percent are more nearly approximated. See Fenderson at 12 Vet. App. 126; 38 U.S.C.A. § 5107(b). The evidence shows that the Veteran's service-connected PTSD results in symptoms of impaired sleep, anxiety, depression, and lack of interest in activities and feelings of detachment from others; the rating criteria considered in this case reasonably describe the Veteran's disability level and these symptoms. The Veteran's disability picture is contemplated by the rating schedule, the assigned schedular evaluation for the service-connected PTSD disability is adequate, and referral is not required. Thun v. Peake, 22 Vet. App. 111 (2008); 38 C.F.R. § 3.321(b)(1). Finally, the Board has considered whether a claim of total disability based on individual unemployability was inferred in accordance with Rice v. Shinseki, 22 Vet. App. 447 (2009). Although the Veteran is not employed, the evidence does not show, nor does the Veteran assert, that this is attributable to his service-connected PTSD. Indeed, the VA examiner opined that the PTSD does not have an impact on his ability to work. As there is no evidence of unemployability due to PTSD; the question of entitlement to a TDIU is not raised. ORDER An initial evaluation of 30 percent, and no more, for PTSD is granted. ____________________________________________ RONALD W. SCHOLZ Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs