Citation Nr: 1329637 Decision Date: 09/16/13 Archive Date: 09/20/13 DOCKET NO. 10-39 275 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Seattle, Washington THE ISSUE Entitlement to an initial disability rating in excess of 30 percent prior to April 8, 2013; and a disability rating in excess of 50 percent from April 8, 2013; for posttraumatic stress disorder (PTSD). REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States WITNESSES AT HEARING ON APPEAL Veteran and Spouse ATTORNEY FOR THE BOARD A. Haddock, Associate Counsel INTRODUCTION The Veteran served on active duty with the United States Marine Corps from September 1956 to November 1987, with service in the Republic of Vietnam, for which he was awarded the Silver Star, a Bronze Star with "V" device, the Navy Commendation Medal with "V" device, and four Purple Heart Medals. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an October 2009 rating decision by the Seattle, Washington Department of Veterans Affairs (VA) Regional Office (RO). In March 2012, the Veteran and his spouse appeared and provided testimony at a Travel Board hearing before the undersigned Veterans Law Judge. A transcript of that hearing is associated with the record. This matter was previously remanded by the Board in February 2013 for additional development. It has now returned to the Board for appellate review. The Board has not only reviewed the Veteran's physical claims file but also the Veteran's file on the "Virtual VA" system to insure a complete review of the evidence. In the July 2013 brief, the Veteran's representative stated that VA "was made aware of the Veteran's current unemployment via his recent C&P examination" and that an inferred claim for a total disability rating based on individual unemployability (TDIU) was pending. The Board respectfully disagrees. Although the Veteran is not currently working, he retired from his long-term career in 2008, and he has not stated that he is now unable to obtain or maintain gainful employment because of his PTSD. Of course, the Veteran can file a claim for TDIU at any future time. Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). 38 U.S.C.A. § 7107(a)(2) (West 2002). FINDING OF FACT The Veteran's PTSD more nearly approximates occupational and social impairment with reduced reliability and productivity due to such symptoms as flattened affect, intrusive thoughts, avoidance, irritability, angry outbursts, difficulty concentrating, hypervigilance, feelings of detachment and estrangement from others, disturbances of motivation and mood, anxiety, chronic sleep impairment, nightmares, and suspiciousness; it does not manifest in symptoms causing deficiencies in most areas. CONCLUSION OF LAW The criteria for a disability rating of 50 percent, but no higher, for service-connected PTSD, have been met or approximated for the entire period on appeal. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 4.1, 4.7, 4.10, 4.21, 3.321(b), 4.130, Diagnostic Code 9411 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION I. Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA), codified in pertinent part at 38 U.S.C.A. §§ 5103, 5103A (West 2002), and the pertinent implementing regulation, codified at 38 C.F.R. § 3.159 (2012), provide that VA will assist a claimant in obtaining evidence necessary to substantiate a claim but is not required to provide assistance to a claimant if there is no reasonable possibility that such assistance would aid in substantiating the claim. VA is also required to notify the claimant and the claimant's representative, if any, of any information, and any medical or lay evidence, not previously provided to the Secretary that is necessary to substantiate the claim. As part of the notice, VA is to specifically inform the claimant and the claimant's representative, if any, of which portion, if any, of the evidence is to be provided by the claimant and which part, if any, VA will attempt to obtain on behalf of the claimant. Although the regulation previously required VA to request that the claimant provide any evidence in the claimant's possession that pertains to the claim, the regulation has been amended to eliminate that requirement for claims pending before VA on or after May 30, 2008. The Board also notes that the United States Court of Appeals for Veterans Claims (Court) has held that the plain language of 38 U.S.C.A. § 5103(a) requires that notice to a claimant pursuant to the VCAA be provided "at the time" that, or "immediately after," VA receives a complete or substantially complete application for VA-administered benefits. Pelegrini v. Principi, 18 Vet. App. 112, 119 (2004). The record reflects that prior to the initial adjudication of the claim, the Veteran was mailed letters in June 2007 and May 2009 advising him of what the evidence must show and of the respective duties of VA and the claimant in obtaining evidence. These letters also provided the Veteran with appropriate notice with respect to the disability-rating and effective-date elements of his claim. The Board also finds the Veteran has been afforded adequate assistance in response to his claim. The Veteran's service treatment records (STRs) are on file, VA Medical Center treatment notes have been obtained and are associated with the Veteran's "Virtual VA" file, and the Veteran has been afforded a VA examination in September 2009. As will be discussed in more detail below, the Board notes that the September 2009 VA examination was conducted after a full reading of the claims file, including the Veteran's VA treatment records, examination of the Veteran, and an explanation of rationale for the opinions stated; and therefore, the Board finds the examination adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). Additionally, the Board acknowledges that pursuant to the February 2013 Board remand, the Veteran was afforded a new VA examination in April 2013. The Board notes that the April 2013 VA examiner indicated a review of the claims file (including the Veteran's VA treatment records and prior VA and private examinations of record) was conducted in conjunction with the examination, the examiner provided a diagnosis in accordance with the DSM-IV and assigned a GAF score, in accordance with the February 2013 remand directives. In light of the foregoing, the Board finds that the April 2013 VA examination is adequate and there has been substantial compliance with the Board's February 2013 remand. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). Therefore, no additional remand is required and the Veteran will not be prejudiced by the Board adjudicating the claim at this time. See D'Aries v. Peake, 22 Vet. App. 97, 104- 106 (2008); Stegall v. West, 11 Vet. App. 268 (1998). Also, in Bryant v. Shinseki, 23 Vet. App. 488 (2010), the United States Court of Appeals for Veterans Claims (Court) held that 38 C.F.R. 3.103(c)(2) requires that the VLJ who conducts a hearing fulfill two duties to comply with the regulation. They consist of (1) the duty to fully explain the issues and (2) the duty to suggest the submission of evidence that may have been overlooked. In this case, during the March 2012 Board hearing, the VLJ fully explained the issue on appeal, and asked questions focused on the functional impairment of the disability in question, specifically as to the past and current severity of the symptoms caused by the Veteran's service-connected PTSD. The Veteran was assisted at the hearing by an accredited representative from the Veterans of Foreign Wars and additional testimony was provided by the Veteran's spouse. In addition, the VLJ sought to identify any pertinent evidence not currently associated with the claims file that might have been overlooked, or was outstanding, that might substantiate the claim. The Veteran did not identify any outstanding evidence and the Board notes that neither the Veteran nor his representative has asserted that VA failed to comply with 38 C.F.R. § 3.103(c)(2) or identified any prejudice in the conduct of the Board hearing. As such, the Board finds that, consistent with Bryant, the VLJ complied with the duties set forth in 38 C.F.R. § 3.103(c)(2), and that any error in notice provided during the Veteran's hearing constitutes harmless error. Significantly, neither the Veteran nor his representative has identified any outstanding evidence, to include medical records, which could be obtained to substantiate the claim. The Board is also unaware of any such evidence. Accordingly, the Board will address the merits of the claim. II. Legal Criteria The Veteran asserts that he is entitled to an initial disability rating in excess of 30 percent prior to April 8, 2013 and a disability rating in excess of 50 percent from April 8, 2013, for his service-connected PTSD. Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (Rating Schedule) found in 38 C.F.R. Part 4. 38 U.S.C.A. § 1155. Psychiatric disability is rated under the General Rating Formula for Mental Disorders. PTSD is rated under38 C.F.R. § 4.130, Diagnostic Code 9411, which provides for a 30 percent disability evaluation 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, and mild memory loss(such as forgetting names, directions, recent events). Id. A 50 percent evaluation is assigned 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 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; difficult establishing and maintaining effective work and social relationships. Id. A 70 percent evaluation is warranted where there is 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; intermittently illogical, obscure, or irrelevant speech; 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. Id. A 100 percent evaluation is warranted where there is 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. Ratings are assigned according to the manifestation of particular symptoms. However, the use of the term "such as" in 38 C.F.R. § 4.130 demonstrates that the symptoms after that phrase are not intended to constitute an exhaustive list, but rather are to serve as examples of the type and degree of the symptoms, or their effects, that would justify a particular rating. Mauerhan v. Principi, 16 Vet. App. 436 (2002). When evaluating a mental disorder, the rating agency shall consider the frequency, severity, and duration of psychiatric symptoms, 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. However, when evaluating the level of disability from a mental disorder, the rating agency will consider the extent of social impairment, but shall not assign an evaluation on the basis of social impairment. 38 C.F.R. § 4.126(b). The Global Assessment Functioning (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 (1996). A score of 31 to 40 reflects some impairment in reality testing or communication or major impairment in several areas such as work or school, family relations, judgment, thinking, or mood. A score of 41 to 50 is assigned where there are "[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)." DIAGNOSTIC AND STATISTICAL MANUAL OF MENTAL DISORDERS (DSM- IV) 47 (4th ed. 1994). A score of 51 to 60 is appropriate where there are "[m]oderate 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 GAF score of 61 to 70 indicates the examinee has some mild symptoms or some difficulty in social, occupational, or school functioning, but generally functions pretty well with some meaningful interpersonal relationships. Id. at 46. While particular GAF scores are not contained in the VA schedule of ratings for mental disorders, 38 C.F.R. § 4.130, they are a useful tool in assessing a Veteran's disability and assigning disability evaluations. However, they are just one of many factors considered when determining an evaluation. It is not expected that all cases will show all the findings specified; however, findings sufficiently characteristic to identify the disease and the disability therefrom and coordination of rating with impairment of function will be expected in all instances. 38 C.F.R. § 4.21. Where there is a question as to which of two evaluations shall be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. When there is an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter, including degree of disability, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 4.3 The Court has held that when the rating appealed is the initial rating assigned with a grant of service connection, the entire appeal period is for consideration, and 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 (1999). III. Factual Background and Analysis Of record is an April 2009 private mental health evaluation of the Veteran performed by S.G., a licensed mental health counselor certified in trauma counseling. At the time of this evaluation, the Veteran reported a history of mental health issues since returning from his first deployment to the Republic of Vietnam, and that during his active service he spent a total of 30 months in the Republic of Vietnam. On mental status examination, the Veteran was noted to have a flattened affect, mild mood disturbance, and hyperactive motor activity. He was dressed appropriately and was clean. He was oriented to person, time, and place. His speech functions were appropriate, yet talkative, speech quality was emotional, eye contact was appropriate, and his attitude was positive and attentive. His short and long term memory was intact and he was able to express his current level of distress and past personal and combat history. The examiner noted that the Veteran's personal insight to the disorder was limited, but would improve with education about PTSD. Psychological testing revealed that the Veteran had symptoms of re-experiencing his traumatic combat events, avoidance, and hyperarousal, which indicated he suffered from significant PTSD. The psychological testing revealed the Veteran had mild mood disturbance and a non-clinical level of suicidality. The examiner noted that the Veteran's symptoms, combined with his history, indicated he met the criteria for a diagnosis of PTSD. The Veteran was afforded a VA examination in September 2009. At that time he reported that while on active service, he served four tours in the Republic of Vietnam and witnessed many injuries and fatalities, and was himself, injured several times. He reported that he was awarded four Purple Heart Medals, a Bronze Start with "V" device, and the Silver Star. He reported that he had been married three times, and had been married to his current wife for 27 years. He reported that he had limited friendships and engaged in limited social activities, as that was his preference. He reported that he enjoyed spending his leisure time with his wife and traveling. He denied any history of suicide attempts or violence and assaultiveness. He reported that following his retirement from the U.S. Marine Corps, he worked for the Clark County Sheriff's Office until his retirement in May 2008. He reported that he had two adult sons, with whom he maintained relationships, and that he enjoyed family activities. He reported that he drank alcohol in moderation, but denied any history of other substance abuse. He reported frequent intrusive thoughts about events from his active service, hyperarousal with a history of anger issues, and some social withdrawal. He reported minimal difficulty in occupational functioning, but did report that he was viewed as having an irritable mood. On mental status examination, the Veteran was noted to be casually dressed and well groomed. He was restless and described his military experiences in an animated fashion. His speech was spontaneous, clear, and coherent, with some pressured speech. He was cooperative with the examiner and his affect was appropriate. His mood was dysphoric and labile as he discussed his experiences in combat. His attention was intact, he was able to do the serial 7's, and he was able to spell a word forward and backward. He was oriented to person, time, and place. His thought process was unremarkable, but his thought content was noted to be quite preoccupied with recounting experiences from Vietnam, with some morbid thought. His judgment was generally good and no delusions or hallucinations were present. His intelligence was noted to be high average and his insight was capable. The examiner noted the Veteran had sleep impairment in the form of staying up late, until 2:00 or 3:00 in the morning, and sleeping late, which was noted to be caused by the Veteran's history of an irregular work schedule. The Veteran did not report combat related nightmares. He had some history of inappropriate behavior, in that he was somewhat impulsive when angry. He was able to interpret proverbs appropriately and was able to maintain minimum personal hygiene. The Veteran did not have panic attacks, homicidal or suicidal thoughts, or any problems with activities of daily living. His remote memory was normal, but there was mild impairment with his recent and immediate memory. The examiner noted that the Veteran suffered from recurrent and intrusive distressing recollections of his combat experiences and intense psychosocial distress at exposure to internal or external cues that symbolized or resembled those traumatic events. Additionally, the Veteran was noted to avoid activities, places, or people that aroused recollections of his combat experiences and he felt detached or estranged from others. He was also noted to have symptoms of irritability and outbursts of anger, with difficulty concentrating and hypervigilance. The examiner noted the Veteran's symptoms were chronic, ongoing, and mild. The examiner diagnosed mild PTSD and assigned a GAF score of 72. She noted that the Veteran was able to accomplish his activities of daily living and maintain a regular routine, but continued to experience intermittent PTSD symptoms, with frequent intrusive thoughts. The Veteran was afforded another VA examination in April 2013. At that time he reported recurrent and distressing recollections of his combat experiences, including images, thoughts, or perceptions. He reported recurrent distressing dreams of his combat experiences, and that at times he felt as if those experiences were recurring. He reported feelings of intense psychological distress and reactivity at exposure to internal or external cues that symbolized or resembled an aspect of his combat experiences. He reported that he made efforts to avoid thoughts, feelings, or conversations associated with his combat experiences; as well as activities, places, or people that aroused recollections of such. He reported feelings of detachment or estrangement from others and a sense of a foreshortened future. He endorsed difficulty falling or staying asleep, irritability or angry outbursts, difficulty concentrating, hypervigilance, and an exaggerated startle response. He reported that his sleep pattern was fragmented and that he had vivid dreams of his combat experiences. He reported that he had a definite increase in his irritability and that he was argumentative when he didn't want to be. On mental status examination, the Veteran was noted to be appropriately groomed and had adequate hygiene. He was cooperative and made consistent eye contact throughout the interview. Speech was a regular rhythm, rate, and volume. Thought processes were linear and thought content did not show any unusual concerns. The Veteran was noted to have a restricted range of affect and his mood was somewhat tense. The examiner noted symptoms of anxiety, suspiciousness, chronic sleep impairment, and disturbances of motivation and mood. The Veteran's judgment was intact, as well as his description of decision making in matters of everyday living. His insight was good and he showed a good understanding of how his symptoms affected his ability to interact with others. The examiner diagnosed PTSD and assigned a GAF score of 51 based on the Veteran's history of suffering from chronically moderately severe symptoms of PTSD, regardless of his postservice employment history as a custody officer until his retirement in 2008. The examiner noted that the Veteran's PTSD caused occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks, although generally functioning satisfactorily with normal routine behavior, self-care, and conversation. The Veteran was afforded a Board hearing in March 2012. At that time, he reported that following his retirement in May 2008, his PTSD symptoms worsened. He reported symptoms of irritability, nightmares 2 to 3 times a week, hypervigilance, and social withdrawal. The Veteran's spouse also testified at the March 2012 Board hearing, and supported the Veteran's statements regarding his PTSD symptoms. Additionally, at his Board hearing, the Veteran indicated that he was dissatisfied with his September 2009 VA examination. Specifically, the Veteran indicated that the VA examiner did not appear to fully comprehend the traumatic nature of the events that he was describing. The Board notes that while it is unclear from the September 2009 VA examination report if that was in fact the case, the symptoms described in the examination report are adequately reported in order to properly determine the current severity of the Veteran's PTSD, in conjunction with the other evidence of record. Based on the evidence above, the Board finds that the Veteran's PTSD more nearly approximates a 50 percent disability rating for the entire period on appeal. In this regard, the Board notes that the Veteran's PTSD has been manifested by symptoms of intrusive thoughts, avoidance, irritability, angry outbursts, difficulty concentrating, hypervigilance, feelings of detachment and estrangement from others, disturbances of motivation and mood, anxiety, chronic sleep impairment, nightmares, and suspiciousness. The Board notes that the September 2009 VA examiner characterized the Veteran's symptoms as mild, and assigned a GAF score of 72, which is indicative of mild impairment. However, the April 2009 private mental health evaluation indicated that the Veteran's severity of symptoms, including his re-experience symptoms, his avoidance, and his hyperarousal, indicated the Veteran suffered from severe PTSD. The Board finds, that upon review of both the April 2009 private mental health evaluation and the September 2009 VA examinations, as well as the Veteran's March 2012 hearing testimony and the April 2013 VA examination report, the totality of the symptoms described above more nearly approximate those contemplated by the 50 percent rating criteria, and thus the basis for a 50 percent disability rating for the entire period on appeal. 38 C.F.R. § 4.130, Diagnostic Code 9411. The Board acknowledges that the results of the VA examinations and the symptoms described in the private mental health evaluation do not indicate that the Veteran experiences all of the symptoms associated with a 50 percent disability rating for a psychiatric disability. However, the U.S. Court of Appeals for Veterans Claims (Court) has held that the symptoms enumerated under the schedule for rating mental disorders are not intended to constitute an exhaustive list, but rather are to serve as examples of the type and degree of the symptoms, or their effects, that would justify a particular disability rating. See Mauerhan v. Principi, 16 Vet. App. 436 (2002). Thus, a finding that there is occupational and social impairment resulting in reduced reliability and productivity is sufficient to warrant a 50 percent disability rating for the entire period on appeal, even though all the specific symptoms listed for a 50 percent rating are not manifested. Consideration has been given to assigning a disability rating higher than 50 percent for the Veteran's PTSD. However, there is no indication from the evidence of record that the Veteran has experienced occupational and social impairment with deficiencies in most areas. In this regard, the Board notes that the April 2009 private mental health evaluation and the September 2009 VA examination reports indicate the Veteran has been able to maintain a successful marriage and relationships with his adult children. The September 2009 VA examination report specifically notes that while the Veteran's social interactions might be limited; he enjoys spending time with his family and traveling. Additionally, following his separation from active service, the Veteran was able to maintain a long career with the Clark County Sheriff's Office until his retirement in May 2008. Further, the Veteran has not been shown to have difficulties in judgment and thinking, he does not have homicidal ideations, he does not exhibit obsessional rituals which interfere with routine activities, and his speech is normal. Further, the Veteran has been noted to be able to maintain minimal personal hygiene and it has been noted that his PTSD symptoms do not interfere with his daily activities. Therefore, the Board finds that a disability evaluation of 70 or 100 percent is not warranted for the Veteran's PTSD. 38 C.F.R. § 4.130, Diagnostic Code 9411. Consideration has also been given to assigning staged ratings for the Veteran's PTSD. However, at not time during the period in question has the Veteran's PTSD warranted higher schedular ratings. See Fenderson v. West, 12 Vet. App. 119 (1999). Extra-Schedular Consideration The Board has also considered whether this case should be referred to the Director of the VA Compensation and Pension Service for extra-schedular consideration under 38 C.F.R. § 3.321(b)(1). The Court has held that the threshold factor for extra- schedular consideration is a finding on part of the RO or the Board that the evidence presents such an exceptional disability picture that the available schedular evaluations for the service-connected disabilities at issue are inadequate. Therefore, initially, there must be a comparison between the level of severity and the symptomatology of the disability with the established criteria provided in the rating schedule for the disabilities. If the criteria reasonable describe the claimant's disability level and symptomatology, then the disability picture is contemplated by the rating schedule, the assigned evaluations are therefore adequate, and no referral for extra-schedular consideration is require. Thun v. Peake, 22 Vet. App. 111 (2008 In this case, the evidentiary record does not show any manifestation of, or functional impairment due to, the Veteran's PTSD that are not encompassed by the schedular criteria. There is no indication from the evidence of record that the Veteran has required frequent hospitalizations or has even received any inpatient treatment for his PTSD. [The Board acknowledges that the claims file contains no record of outpatient treatment for PTSD; however, the Veteran indicated at his April 2013 VA examination that he was registered for group therapy at the Vancouver VAMC beginning in June 2013.] Further, the Board notes, while the Veteran retired from his employment with the Clark County Sheriff's Office in May 2008, the Veteran has provided no indication that his PTSD impacts his ability to work in the event he were to seek new employment. In sum, there is no indication that the average industrial impairment from the Veteran's PTSD would be in excess of that contemplated by the disability evaluation assigned herein. Accordingly, the Board has determined that referral of this case for extra-schedular consideration is not in order. ORDER Entitlement to an initial disability rating of 50 percent, for the entire period on appeal, is granted, subject to the laws and regulations governing disbursement of monetary benefits. ____________________________________________ MICHELLE L. KANE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs