Citation Nr: 1330208 Decision Date: 09/20/13 Archive Date: 09/25/13 DOCKET NO. 11-24 309 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Nashville, Tennessee THE ISSUE Entitlement to an initial evaluation in excess of 30 percent for the service-connected posttraumatic stress disorder (PTSD). REPRESENTATION Appellant represented by: The American Legion WITNESSES AT HEARING ON APPEAL The Veteran and His Spouse ATTORNEY FOR THE BOARD K. L. Wallin, Counsel INTRODUCTION The Veteran served on active duty from October 1966 to October 1968. The Veteran was awarded the Combat Infantryman's Badge and two Bronze Star Medals with "V" device for his Honorable service. This matter comes before the Board of Veterans' Appeals (BVA or Board) on appeal from a June 2010 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Nashville, Tennessee, which awarded service connection for PTSD and assigned a 30 percent rating effective from April 2010. The Veteran presented testimony before the Board in December 2012; a transcript of the hearing has been obtained. It appears that a claim for gastroesophageal reflux disease (GERD), to include based on exposure to herbicides, has been raised by the record, but has not been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over it, and it is referred to the AOJ for appropriate action. FINDING OF FACT Affording the Veteran all reasonable doubt, throughout the appellate period, the Veteran's PTSD has been shown to be manifested by occupational and social impairment with reduced reliability and productivity due to such symptoms as flattened affect, panic attacks, nightmares, sleep disturbance, impairment of short and long-term memory, impaired judgment and thinking, disturbances of motivation and mood, and difficulty in establishing and maintaining effective social relationships. CONCLUSION OF LAW The criteria for the assignment of an initial 50 percent rating, and no higher, for the service-connected PTSD have been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 4.3, 4.7, 4.130, including Diagnostic Code 9411 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION I. Notice and Assistance Upon receipt of a complete or substantially complete application for benefits and prior to an initial unfavorable decision on a claim by an agency of original jurisdiction, VA is required to notify the appellant of the information and evidence not of record that is necessary to substantiate the claim. See 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159; Pelegrini v. Principi, 18 Vet. App. 112 (2004); Quartuccio v. Principi, 16 Vet. App. 183 (2002); Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). The notice should also address the rating criteria or effective date provisions that are pertinent to the appellant's claim. Dingess v. Nicholson, 19 Vet. App. 473 (2006). The RO provided the Veteran pre-adjudication notice by letter dated in April 2010. This appeal arises from the Veteran's disagreement with the initial evaluation following the grant of service connection for PTSD. 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). No additional discussion of the duty to notify is therefore required. VA also has a duty to assist the Veteran in the development of the claim, which is not abrogated by the granting of service connection. VA has obtained service treatment records, assisted the Veteran in obtaining evidence, provided the Veteran a VA examination, and afforded the Veteran the opportunity to give testimony before the Board, the transcript of which has been obtained. The Veteran submitted additional records in support of his claim after the August 2011 statement of the case was issued. The additional evidence consisted of VA outpatient treatment records dated between 2011 and 2012, as well as duplicate copies of private treatment records. He waived initial RO consideration of the newly submitted evidence. A remand for preparation of a supplemental statement of the case is not necessary. 38 C.F.R. § 20.1304(c). All known and available records relevant to the issue on appeal have been obtained and associated with the Veteran's claims file; and the Veteran has not contended otherwise. VA has substantially complied with the notice and assistance requirements and the Veteran is not prejudiced by a decision on the claim at this time. II. Analysis The Board has reviewed all the evidence in the Veteran's paper claims file and virtual record (Virtual VA and Veterans Benefits Management System). Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that the evidence submitted by the Veteran or obtained on his behalf be discussed in detail. Rather, the Board's analysis will focus specifically on what evidence is needed to substantiate each claim and what the evidence in the claims file shows, or fails to show, with respect to each claim. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) and Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000). Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (Rating Schedule) and are intended to represent the average impairment of earning capacity resulting from disability. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. Disabilities must be reviewed in relation to their history. 38 C.F.R. § 4.1. VA should interpret reports of examination in light of the whole recorded history, reconciling the various reports into a consistent picture so that the current rating may accurately reflect the elements of disability. 38 C.F.R. § 4.2. Any reasonable doubt regarding the degree of disability should be resolved in favor of the claimant. 38 C.F.R. § 4.3. Where there is a question as to which of two evaluations apply, the higher of the two should be assigned where the disability picture more nearly approximates the criteria for the next higher rating. 38 C.F.R. § 4.7. When considering functional impairment caused by a service-connected disorder, evaluations should be based on an assessment of the lack of usefulness, and adjudicators should consider the effects of the disabilities upon the person's ordinary activity. 38 C.F.R. § 4.10. See also Schafrath v. Derwinski, 1 Vet. App. 589 (1991). 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. Schafrath, 1 Vet. App. at 594. In general, the degree of impairment resulting from a disability is a factual determination and generally the Board's primary focus in such cases is upon the current severity of the disability. Francisco v. Brown, 7 Vet. App. 55, 57-58 (1994); Solomon v. Brown, 6 Vet. App. 396, 402 (1994). The Board also acknowledges that a claimant may experience multiple distinct degrees of disability that might result in different levels of compensation at any stage since the effective date of service connection. See Fenderson v. West, 12 Vet. App 119 (1999). The analysis in the following decision is undertaken with consideration of the possibility that different ratings may be warranted for different time periods. Ratings shall be based as far as practicable, upon the average impairments of earning capacity with the additional proviso that the Secretary shall from time to time readjust this schedule of ratings in accordance with experience. To accord justice, therefore, to the exceptional case where the schedular evaluations are found to be inadequate, the Under Secretary for Benefits or the Director, Compensation and Pension Service, upon field station submission, is authorized to approve on the basis of the criteria set forth in this paragraph an extra-schedular evaluation commensurate with the average earning capacity impairment due exclusively to the service-connected disability or disabilities. The governing norm in these exceptional cases is: A finding that the case presents such an exceptional or unusual disability picture with such related factors as marked interference with employment or frequent periods of hospitalization as to render impractical the application of the regular schedular standards. 38 C.F.R. § 3.321(b)(1). The service-connected PTSD disability has been assigned an initial 30 percent rating under 38 C.F.R. § 4.130, Diagnostic Code 9411. Under the applicable criteria, a 30 percent disability evaluation is warranted 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). 38 C.F.R. § 4.130. A 50 percent disability evaluation is assigned under the general rating formula for mental disorders where the evidence shows 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. Id. A 70 percent rating is assigned 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 worklike setting); inability to establish and maintain effective relationships. Id. A 100 percent rating 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; intermittent 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 determining the appropriate disability evaluation to assign, the Board's "primary consideration" is the Veteran's symptoms, but it must also make findings as to "how those symptoms impact[ ]" the Veteran's occupational and social impairment. Vazquez-Claudio v. Shinseki, 713 F.3d 112 (Fed. Cir. 2013); see Mauerhan v. Principi, 16 Vet. App. 436 (2002). Because "use of the term 'such as' [in the rating criteria] demonstrates that the symptoms after that phrase are not intended to constitute an exhaustive list," "any suggestion that the Board was required, in complying with the regulation, to find the presence of all, most, or even some, of the enumerated symptoms is unsupported by a reading of the plain language of the regulation." Mauerhan, 16 Vet. App. at 442; see also Sellers v. Principi, 372 F.3d 1318, 1326-27 (Fed.Cir.2004). However, because "[a]ll non-zero disability levels [in § 4.130] are also associated with objectively observable symptomatology" and the plain language of the regulation makes it clear that "the Veteran's impairment must be 'due to' those symptoms," "a veteran may only qualify for a given disability rating under § 4.130 by demonstrating the particular symptoms associated with that percentage, or others of similar severity, frequency, and duration." Vazquez-Claudio, 713 F.3d at 112. Having carefully considered all the evidence of record in light of the pertinent law and regulations, the Board finds that an initial 50 percent rating, and no higher, is warranted throughout the appeal period. 38 C.F.R. § 4.7. The pertinent evidence is as follows. In April 2010, a private counseling record assigned the Veteran a GAF score of 40, which is indicative of some impairment in reality testing or communication or major impairment in several areas, such as work, family relations, judgment, thinking or mood. The provider noted the Veteran's attention and concentration were poor, impulse control was poor, speech was pressured, affect was flat, insight and judgment were fair, and memory was impaired. Upon VA examination in June 2010, the Veteran reported more frequent episodes of low mood in the years since he retired and his lifestyle had slowed. Intrusive memories of Vietnam prompted the low mood and sadness. He endorsed trouble falling asleep as he ruminated on Vietnam, as well as nightmares. In recent years, the nightmares were said to have become more frequent. The examiner found the following PTSD symptoms to be present: recurrent and intrusive distressing recollections of Vietnam intense psychological distress and physiological reactivity at exposure to internal or external cues that symbolized or resembled an aspect of the traumatic event. The Veteran had difficulty falling or staying asleep, irritability or outbursts of anger, hypervigilance, and exaggerated startle response. The examiner indicated the symptoms had been mild over the decades, but the memories and anxiety had been more difficult to contain in recent years. He assigned the Veteran a Global Assessment of Functioning Scale Score (GAF) of 63, which according to the Diagnostic and Statistical Manual of Mental Disorders, Fourth Edition, of the American Psychiatric Association (DSM-IV), was indicative of only mild symptoms. However, the Board finds that the GAF score was not commensurate with the examiner's own indications that the Veteran's PTSD impacted the quality of the Veteran's life by producing aversive re-experiencing, physiological reactivity and emotional turmoil, irritability, introversion, anxiety in crowded public places, and being prone to inappropriate verbal outbursts or withdrawal if angered. The Board notes that DSM-V (the latest version of the DSM) has now been officially released. However, 38 C.F.R. § 4.130 still explicitly refers to the DSM-IV. The regulation legally requires continuing considering this prior version of the DSM until such time as the regulation is changed. There is a regulation change in the works that would change the regulation to reference "the current version of the DSM." However, it is unclear when that proposed change will be published. In June 2010, the Veteran's counselor (JCT) indicated the Veteran had been attending group therapy and individual counseling for PTSD symptoms that included paranoia, panic attacks, social isolation, fear, and nightmares. JCT assigned the Veteran a GAF score of 30 to 35. A GAF of 30 is indicative of behavior considerably influenced by delusions or hallucinations or serious impairment in communication or judgment or inability to function in almost all areas. A GAF of 35 is indicative of some impairment in reality testing or communication or major impairment in several areas, such as work, family relations, judgment, thinking or mood. An attached worksheet for signs and symptoms of PTSD revealed the presence of sleep disturbance, feelings of guilt or worthlessness, difficulty concentrating or thinking, persistent anxiety, vigilance, irrational fear of a specific object, severe panic attacks, recurrent obsessions or compulsions, and recurrent and intrusive recollections of the traumatic experience. A November 2010 statement from JCT revealed he had known the Veteran for over a year and indicated the Veteran's rating should be 50 percent as the Veteran continued to report poor to no sleep due to continued nightmares relative to Vietnam. In March 2011, the Veteran was assigned a GAF score of 35 to 40, which as noted above, is indicative of some impairment in reality testing or communication or major impairment in several areas, such as work, family relations, judgment, thinking or mood. This was based on flattened affect (tears), panic attacks more than once a week, difficulty in understanding complex commands, impairment in memory, impaired judgment and abstract thinking, disturbances of motivation and mood, and difficulty in establishing and maintaining effective social relationships. JCT further elaborated and indicated that the Veteran had intrusive thoughts of Vietnam on a daily basis, severe sleep disturbance, nightmares, hitting his wife in his sleep, absent short-term memory, and hypervigilance. VA outpatient treatment records dated between 2011 and 2012 contain continued complaints of flashbacks, poor judgment, loss of interest and motivation, intrusive memories, sleep disturbance, night terrors, startled reflexes, lack of trust in people, irritability, isolation, and feelings of range and anger. His wife informed the Veteran that he floundered around in his sleep and started hollering. The Veteran did not like to watch television because of the fighting oversees. He was assigned GAF scores ranging from 50 to 58 indicative of moderate symptoms. The Veteran testified in December 2012 that his medications kept increasing in attempts to control his symptoms. He further testified that he suffered from nightmares and did not want to go out of his house to avoid being around people. He only watched the weather on television. His hobbies included fishing, playing with his dogs, and fiddling around in his shop. Based on the evidence delineated above, and affording the Veteran all reasonable doubt, an initial 50 percent evaluation is warranted throughout the appeal period. While some of the symptoms experienced by the Veteran (including panic attacks and impaired impulse control) approximate those listed in the 70 percent criteria, the Board finds that, overall, the symptoms experienced by the Veteran are of similar duration, frequency, and severity as those described for the 50 percent rating, for the entire appeal period. Notably, there was no evidence of suicidal ideation obsessional rituals which interfered with routine activity, speech intermittently illogical, obscure, or irrelevant, spatial disorientation, or neglect of personal hygiene. While the Veteran had impaired impulse control, it did not result in periods of violence. Though the Veteran reported panic and depression, it did not affect his ability to function independently. With regard to impairment in occupational functioning, the Veteran retired after 29 years as instructor at a technical center. He informed the VA examiner that he retired because he was getting tired and irritated with the job. He denied any inappropriate anger outbursts at work. Feedback from supervisor and students was good throughout his tenure at the school. He retired as an employee in good standing. The Board notes there was some discrepancy in the GAF scores assigned by VA and his private provider regarding the severity of his symptoms. However, it is clear that overall, the objective findings paint a disability picture more consistent with PTSD productive of social impairment with reduced reliability and productivity due to such symptoms as flattened affect, panic attacks, impairment of short and long-term memory, impaired judgment and thinking, disturbances of motivation and mood, and difficulty in establishing and maintaining effective social relationships. 38 C.F.R. § 4.119; See Fenderson, 12 Vet. App. at 126. "Staged" ratings, other than what is granted in the instant decision, are not warranted for any period of the appeal. 38 C.F.R. § 4.71a; see Fenderson, supra. Should the Veteran's disability picture change in the future, he may be assigned a higher rating. See 38 C.F.R. § 4.1. Finally, the Board has considered whether extraschedular consideration is warranted. The symptoms and resulting impairment demonstrated with regard to the PTSD fall within the schedular criteria. As delineated above, the Veteran has been awarded a 50 percent evaluation for his service-connected PTSD. The rating criteria contemplates a higher rating for PTSD, but as explained above, the evidence does not show that the Veteran has manifestations of the PTSD disability that meet the next higher rating criteria. His disability is manifested by social impairment with reduced reliability and productivity due to such symptoms as flattened affect, panic attacks, impaired memory, judgment and thinking, disturbances of motivation and mood, and difficulty in establishing and maintaining effective social relationships. The rating criteria contemplate such impairment. See Diagnostic Code 9411. The discussion above reflects that the rating criteria reasonably describes and contemplates the severity and symptomatology of the Veteran's service-connected PTSD. Thus, consideration of whether the Veteran's disability picture exhibits other related factors such as those provided by the regulations as "governing norms" is not required and referral for an extraschedular rating is unnecessary. Thun v. Peake, 22 Vet. App. 111 (2008). A total rating for compensation based on individual unemployability (TDIU) is an element of all appeals of an initial rating. Rice v. Shinseki, 22 Vet. App. 447 (2009). Entitlement to TDIU is raised where a Veteran : (1) submits evidence of a medical disability; (2) makes a claim for the highest rating possible; and (3) submits evidence of unemployability. Roberson v. Principi, 251 F.3d 1378 (Fed. Cir. 2001). However, TDIU is not raised in an increased rating claim unless the Roberson requirements are met. Jackson v. Shinseki, 587 F.3d 1106 (Fed. Cir. 2009). The Veteran has not raised a claim for TDIU. The Veteran retired from his job as an instructor after 29 years of employment. He retired as an employee in good standing. Further, the 2010 VA examiner specifically found that the Veteran did not have total occupational impairment due to PTSD. As PTSD is the Veteran's only service-connected disability, further consideration of TDIU is not warranted. ORDER An initial 50 percent evaluation is granted for service-connected PTSD, subject to the controlling regulations governing monetary awards. ____________________________________________ M. C. GRAHAM Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs