Citation Nr: 1329915 Decision Date: 09/18/13 Archive Date: 09/25/13 DOCKET NO. 09-22 776 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Milwaukee, Wisconsin THE ISSUE Entitlement to an initial rating in excess of 50 percent for posttraumatic stress disorder (PTSD). REPRESENTATION Veteran represented by: Disabled American Veterans ATTORNEY FOR THE BOARD T. Blake, Associate Counsel INTRODUCTION The Veteran served on active duty from July 1967 to October 1972. This case comes before the Board of Veterans' Appeals (Board) on appeal from a June 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Milwaukee, Wisconsin. In a July 2012 decision, the Board granted an initial rating of 50 percent, but no higher, for PTSD. The Veteran appealed the Board's decision for the issue of a rating higher than 50 percent to the United States Court of Appeals for Veterans Claims (Court). By order dated February 2013, the Court granted a Joint Motion for Remand (JMR), vacated the July 2012 Board decision that denied an initial rating in excess of 50 percent, and remanded the case for compliance with the terms of the JMR. The Board has considered whether the issue of entitlement to a total disability rating based on individual unemployability (TDIU) due to the service-connected PTSD is reasonably raised by the record. See Rice v. Shinseki, 22 Vet. App. 447, 453-54 (2009). The Veteran has repeatedly attributed his inability to work to physical disability involving his legs and/or knees, not his psychiatric disability. The Veteran's own statement, overall, provides a basis to find that the issue of TDIU has not been raised by the record at this time. The JMR did not cite this as an issue. Thus, the Board finds the issue of TDIU is neither reasonably raised by the record nor alleged by the Veteran in this case, and the issue is not part of the Veteran's appeal. The Board has not only reviewed the Veteran's physical claims file but also the Veteran's file on the "Virtual VA" system to ensure a total review of the evidence. FINDINGS OF FACT 1. All relevant evidence necessary to decide the Veteran's appeal has been obtained. 2. For the entire initial rating period, the service-connected PTSD is not characterized by occupational and social impairment, with deficiencies in most areas, such as work, school, family relations, judgment, thinking or mood, due to psychiatric symptomatology, or by total occupational and social impairment due to psychiatric symptomatology. CONCLUSION OF LAW The criteria for an initial disability rating in excess of 50 percent for PTSD have not been met for any period. 38 U.S.C.A. §§ 1155, 5107(b) (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.102, 4.1, 4.3, 4.7, 4.10, 4.126, 4.130, Diagnostic Code (DC) 9411 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSION Disability evaluations are determined by the application of the schedule of ratings which is based on average impairment of earning capacity. See U.S.C.A. § 1155 (West 2002). Separate diagnostic codes identify the various disabilities. In order to evaluate the level of disability and any changes in condition, it is necessary to consider the complete medical history of a veteran's disability. See Schafrath v. Derwinski, 1 Vet. App. 589, 594 (1991). Regulations do not require that all cases show all findings specified by the Rating Schedule, but that findings sufficiently characteristic to identify the disease and the resulting disability and above all, coordination of rating with impairment of function will be expected in all cases. 38 C.F.R. § 4.21 (2013). When entitlement to compensation has been established and a higher initial evaluation is at issue, the level of disability at the time entitlement arose is of primary concern. Consideration must also be given to a longitudinal picture of the Veteran's disability to determine if the assignment of separate ratings for separate periods of time, a practice known as "staged" ratings, is warranted. See Fenderson v. West, 12 Vet. App. 119 (1999). 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 required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. When after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding the degree of disability such doubt will be resolved in favor of the claimant. 38 C.F.R. § 4.3. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, the extensive evidence of record. Indeed the Federal Circuit has held that the Board must review the entire record, but does not have to discuss each piece of evidence. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). Therefore, the Board will summarize the relevant evidence where appropriate, and the Board's analysis below will focus specifically on what the evidence shows, or fails to show, as to the claim on appeal. This case presents with a somewhat unusual procedural history: Originally, service connection for chronic anxiety disorder not otherwise specified (NOS) was granted with an evaluation of 10 percent effective February 26, 2008 (i.e., the date of the Veteran's claim) in the June 2008 rating decision. In the same rating decision, the RO denied service connection for PTSD, on the bases that PTSD had not been demonstrated at the VA PTSD examination conducted in May 2008. The RO later increased the evaluation for chronic anxiety disorder NOS to 30 percent effective February 26, 2008, in a March 2009 rating decision. However, following the August 2010 VA examination for mental disorders where the Veteran was diagnosed with PTSD rather than chronic anxiety disorder NOS, the RO found that service connection for PTSD was established effective February 26, 2008 and the grant of such benefits replaced the previous grant of service connection for chronic anxiety disorder NOS. The Veteran seeks a higher initial evaluation for his now service-connected PTSD (formerly chronic anxiety disorder NOS), currently rated at 50 percent disabling, which was grant by the Board, not the RO. The Board notes that the Veteran has been diagnosed with psychiatric disorders other than service-connected PTSD. The Court has held that when a claimant has both service-connected and non-service-connected disabilities, the Board must attempt to discern the effects of each disability and, where such distinction is not possible, attribute such effects to the service-connected disability. Mittleider v. West, 11 Vet. App. 181, 182 (1998). In consideration of the foregoing, the Board has considered all of the Veteran's psychiatric symptoms and diagnoses in reaching its decision regarding entitlement to an initial rating to avoid any prejudice to the Veteran. The Veteran's PTSD is evaluated under the General Rating Formula for Mental Disorders. 38 C.F.R § 4.130, DC 9411. There is no other diagnostic code and/or rating schedule under which it would be appropriate to evaluate the Veteran's psychiatric disability. See Schafrath, 1 Vet. App. at 594. Under the General Rating Formula for Mental Disorders, a 50 percent disability 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 in understanding complex commands; impairment in short-term and long-term memory (e.g., retention of only highly learned material, forgetting to complete tasks); impaired abstract thinking; disturbances of motivation and mood; difficulty in establishing and maintaining effective work and social relationships. 38 C.F.R. § 4.130. A 70 percent disability evaluation is warranted for 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); inability to establish and maintain effective relationships. Id. A 100 percent disability evaluation is assigned 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; inability 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. Id. When evaluating a mental disorder, the rating agency shall consider the frequency, severity, and duration of psychiatric symptoms, the length of remissions, and a veteran's capacity for adjustment during periods of remission. 38 C.F.R. § 4.126(a) (2013). 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. The rating agency shall also consider the extent of social impairment, but not assign an evaluation solely on the basis of social impairment. 38 C.F.R. § 4.126(b). Moreover, 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). The evidence considered in determining the level of impairment under 38 C.F.R. § 4.130 is not restricted to the symptoms provided in the diagnostic code. Instead, VA must consider all symptoms of a claimant's condition that affect the level of occupational and social impairment, including, if applicable, those identified in the American Psychiatric Association: Diagnostic and Statistical Manual of Mental Disorders (4th ed. 1994) (DSM-IV). The Global Assessment of Functioning (GAF) Scale reflects the psychological, social, and occupational functioning on a hypothetical continuum of mental-health illness. See Richard v. Brown, 9 Vet. App. 266, 267 (1996), citing the DSM-IV; see also Carpenter v. Brown, 8 Vet. App. 240, 242-44 (1995). Higher scores correspond to better functioning of the individual. Id. A score of 41 to 50 is defined as 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). Id. A score of 51 to 60 is defined as indicating 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. A score of 61 to 70 is defined as 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, has some meaningful interpersonal relationships. Id. Pursuant to the February 2013 JMR, the Court held that the Board erred by not addressing (1) August 2010 VA examination findings of the Veteran's ongoing marital and domestic violence problems, issues with explosive anger and road rage, self-isolating tendencies sparked by fear of "losing it" around others, depressed mood, flat affect, nervousness, and irritability, (2) June 2010 GAF score of 45, and (3) whether the aforementioned evidence showed a worsening of the Veteran's symptoms during the pendency of the appeal. Moreover, the Board should (1) reevaluate the evidence, (2) assess the level of social and occupational impairment caused by such evidence, and (3) adequately discuss why the Veteran is not entitled to an initial rating in excess of 50 percent. After a full review of the record and consideration of whether the assignment of separate (staged) ratings for separate periods of time is warranted, the Board finds that the evidence is against an initial rating in excess of 50 percent for any period on appeal. In this regard, the Board recognizes that the May 2008 VA PTSD examiner described the Veteran's psychiatric disability as "mild," which is also reflective of the GAF score of 65 assigned. See DSM-IV. The examiner noted that the Veteran reported having "a couple hundred friends and three close friends." The examiner further specifically found that the Veteran's psychiatric symptoms were not severe enough to interfere with occupational and social functioning and referenced the Veteran's statement that he had no problems at work, was a good worker, and cared about what he was doing. This evidence is against the assignment of a higher initial rating for the Veteran's PTSD, in fact providing evidence against the Board's prior finding of 50% in many respects. However, the Veteran mentioned having anger management problems and a "rocky" relationship with his spouse at the May 2008 PTSD examination. Treatment records during the time, relevant to the appeal period, provide further information regarding the statements made at the examination. Indeed, they show that the Veteran has had difficulty maintaining the relationship with his spouse, in part, due to PTSD symptomatology. He has had physical altercations with his spouse, had legal charges of domestic abuse, and attended an anger management program through VA during the course of his claim/appeal. He was even jailed in June 2009 following an altercation with his spouse. He has frequently told mental health providers that he has considered divorcing his spouse although there is no indication in the record that those plans have come to fruition. While PTSD is never a basis to excuse criminal activity, this evidence tends to suggest that the Veteran has difficulty maintaining social relationships and demonstrates significant social impairment in functioning. It is also notable that the Veteran arrived late to an anger management counseling session conducted in March 2009 and offended several other veterans during the session. This evidence indicates the Veteran has difficulty establishing social relationships and, again, demonstrates significant social impairment in functioning. It also suggests some reduced reliability due to psychiatric symptomatology. Additionally, the Veteran was described by mental health providers as having a depressed, anxious, chagrined, or irritable mood at various times during the time relevant to this appeal, which indicates disturbances of motivation and mood. He has further been noted by treating mental health providers to demonstrate restricted affect and has endorsed having short and long-term memory problems. See, e.g., May 2010 psychiatric inpatient progress note and May 2008 VA PTSD examination report. It is further noted that the Veteran's treating mental health providers have assigned GAF scores ranging from 45 to 55 during the time relevant to this appeal, which is indicative of moderate symptoms or difficulty in social and occupational functioning to serious symptoms or impairment in social or occupational functioning, providing more evidence against this claim. Moreover, much of the symptomatology shown in the treatment records was demonstrated or reported at the August 2010 VA medical examination for mental disorders. For example, the examiner noted that the Veteran's affect was "a bit flat" and mood was "depressed." He also noted, in pertinent part, that the Veteran had periods of nervousness, especially in crowds or when being watched, irritability, ongoing marital and domestic violence problems, issues with explosive anger and road rage, and self-isolating tendencies sparked by fear of "losing it" around others. The examiner assigned a GAF score of 55, which reflects his assessment that the Veteran demonstrated moderate symptoms or moderate difficulty in social and occupational functioning. The Board takes into consideration of the Veteran's statements regarding the nature and extent of his problem with this disability. See Layno v. Brown, 6 Vet. App. 465, 470 (1994). Nevertheless, after consideration of the favorable and unfavorable evidence of record in evaluating the Veteran's claim, the Board finds that the evidence is against an initial evaluation in excess of 50 percent for any period on appeal. The Board acknowledges the vague reference to the Veteran's severe PTSD in a May 2010 treatment note and GAF scores of 50 in March 2009 and 45 in June 2010, which indicate serious symptoms. Nevertheless, while the Veteran's PTSD has resulted in a change of impairment in occupational and social functioning, overall, the evidence does not show that the psychiatric disability picture more closely approximates the schedular criteria for a 70 percent rating at any time relevant to the claim/appeal period. The Veteran's representative even argued in the June 2012 Appellant's Brief that the Veteran's psychiatric disability more closely resembled the criteria for a 50 percent rating. In any event, his current psychiatric symptomatology, to include as reported at the August 2010 VA medical examination for mental disorders, is currently contemplated in the assigned 50 percent disability rating. Such findings are not indicative of occupational and social impairment with deficiencies in most areas. Therefore, based on the lay and medical evidence, including the GAF scores and specifically documented frequency, severity, and duration of the psychiatric symptomatology discussed above, the Board finds that an initial evaluation in excess of 50 percent is not warranted for any period. See Vazquez-Claudio v. Shinseki, 713 F.3d 112, 117 (Fed. Cir. 2013) (holding that a veteran may only qualify for a given disability rating under 38 C.F.R. § 4.130 by demonstrating the particular symptoms associated with that percentage, or others of similar severity, frequency, and duration). With respect to the entire initial rating period on appeal, the Board is aware that the symptoms listed under the next-higher ratings are essentially examples of the type and degree of symptoms for those ratings, and that the Veteran need not demonstrate those exact symptoms to warrant a higher initial rating. See Mauerhan, 16 Vet. App. at 436. Moreover, entitlement to a 70 or 100 percent evaluation for any period requires sufficient symptoms of the requirements, or others of similar severity, frequency, or duration, that cause the specific type of occupational and social impairment. See Vazquez-Claudio, 713 F.3d at 118. In this case, the Board has considered the next-higher ratings for any period but finds that the period on appeal is rated appropriately. Specifically, the Board notes that the VA examination reports do not, overall, indicate occupational and social impairment with deficiencies in most areas for example only: 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); inability to establish and maintain effective relationships. In this regard, it is important for the Veteran to understand that not all evidence in this case supports the current 50% evaluation (indications of a mild problem, etc.), let alone a higher evaluation, including parts of the August 2010 examination. With regard to the August 2010 examination report, it is important to note that without consideration of the August 2010 examination there would be no basis for the 50% evaluation, which indicates a worsening of the condition, in some respects, and indications of improvement of the condition, with statements such as: "[h]e is better now in that he leaves the scene quickly when he feels anger rising." There was also the notation that the Veteran's unemployment has "nothing to do with his [PTSD]." While the Veteran clearly has anger problems associated with his PTSD, this is the basis for a finding of occupational and social impairment with reduced reliability and productivity caused by PTSD. If the Veteran had no problems, there would be no basis for a compensable evaluation, let alone 50% evaluation, which very generally indicates a 50% reduction in industrial capacity, a serious disability based on "serious symptoms", notwithstanding the fact that the Veteran's unemployment, as indicated within the August 2010 examination report, has "nothing to do with his [PTSD]". The basis for a 50% evaluation (i.e. "serious symptoms", as indicated within the GAF scores) is, in much part, the GAF scores. With indications of "extensive treatment" to help him with this problem, it is only with consideration of the benefit of the doubt that the Board could grant the 50% evaluation, it is not a basis to find occupational and social impairment with deficiencies in "most areas" which is simply not indicated within the August 2010 report, even with consideration of the GAF scores which, again, are the foundation for Board's finding of a 50% evaluation. Lastly, the Board has considered whether referral for an extra-schedular evaluation is warranted for PTSD. In exceptional cases an extra-schedular rating may be provided. 38 C.F.R. § 3.321 (2013). The threshold factor for extra-schedular consideration is a finding that the evidence before VA presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate. Therefore, initially, there must be a comparison between the level of severity and symptomatology of the claimant's service-connected disability with the established criteria found in the rating schedule for that disability. Thun v. Peake, 22 Vet. App. 111, 115-16 (2008), aff'd sub nom. Thun v. Shinseki, 572 F.3d 1366 (Fed. Cir. 2009). Under the approach prescribed by VA, 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. In the second step of the inquiry, however, if the schedular evaluation does not contemplate the claimant's level of disability and symptomatology and is found inadequate, the RO or Board must determine whether the claimant's exceptional disability picture exhibits other related factors such as those provided by the regulation as "governing norms." 38 C.F.R. 3.321(b)(1) (related factors include "marked interference with employment" and "frequent periods of hospitalization"). When the rating schedule is inadequate to evaluate a claimant's disability picture and that picture has related factors such as marked interference with employment or frequent periods of hospitalization, then the case must be referred to the Under Secretary for Benefits or the Director of the Compensation and Pension Service for completion of the third step-a determination of whether, to accord justice, the claimant's disability picture requires the assignment of an extra-schedular rating. Id. The Board finds that the schedular rating criteria reasonably reflect the Veteran's disability levels and symptomatology. The Veteran's reported difficulties are not so exceptional or unusual a disability picture as to render impractical application of regular schedular standards. Moreover, as noted above, the Veteran's own representative even argued in the June 2012 Appellant's Brief that the Veteran's psychiatric disability more closely resembled the criteria for a 50 percent rating. Therefore, no referral for extra-schedular consideration is required and no further analysis is in order. Therefore, fully considering the lay and medical evidence of record, the Board finds that an initial rating of 50 percent, but no greater, for PTSD is warranted for the entire appeal period. 38 C.F.R. §§ 4.3, 4.7. Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations imposes obligations on VA to provide claimants with notice and assistance. 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2013). When VA receives a complete or substantially complete application for benefits, it is required to notify the claimant and the representative, if any, of any information and medical or lay evidence that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b). VA must (1) inform the claimant about the information and evidence not of record that is necessary to substantiate the claim; (2) inform the claimant about the information and evidence that VA will seek to provide; and (3) inform the claimant about the information and evidence the claimant is expected to provide. This claim on appeal arises from the Veteran's disagreement with 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. Regarding VA's statutory duty to assist in claims development, the RO has afforded the Veteran with PTSD and mental disorder examinations in connection with his claim. Cumulatively, the examination reports include all relevant findings and medical opinions needed to evaluate fairly the Veteran's claim. Therefore, they are deemed adequate for the purposes of this adjudication. Also, treatment records adequately identified as relevant to the Veteran's claim have been obtained to the extent possible, or otherwise submitted, and are associated with the record. There are no additional pertinent records found in the Veteran's file on the "Virtual VA" system. The Veteran's Social Security Administration records have also been obtained. The Veteran has not made the RO or the Board aware of any other evidence relevant to his appeal that needs to be obtained. Based on the foregoing, the Board finds that all relevant facts have been properly and sufficiently developed in this appeal and no further development is required to comply with the duty to assist the Veteran in developing the facts pertinent to the claim adjudicated herein. ORDER An initial rating in excess of 50 percent for PTSD is denied. ____________________________________________ JOHN J. CROWLEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs