Citation Nr: 1330451	
Decision Date: 09/23/13    Archive Date: 09/30/13

DOCKET NO.  13-11 544	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in St. Louis, Missouri



THE ISSUE

Entitlement to an initial evaluation in excess of 30 percent for posttraumatic stress disorder (PTSD).



REPRESENTATION

Appellant represented by:	Missouri Veterans Commission



ATTORNEY FOR THE BOARD

Rebecca Feinberg, Counsel




INTRODUCTION

The Veteran served on active duty from September 1967 to April 1969.

This matter comes to the Board of Veterans' Appeals (Board) on appeal from a December 2011 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Louis, Missouri.  In that rating decision, the RO granted entitlement to service connection for PTSD and assigned a 30 percent rating effective from March 30, 2011.  The Veteran initiated an appeal of the assigned evaluation.

The Veteran's virtual VA claims file contains relevant evidence that is not also associated with the Veteran's paper claims file.  That evidence was reviewed by the RO prior to issuing the March 2013 statement of the case and by the Board prior to issuing this decision.



FINDING OF FACT

Throughout the appeal period, PTSD has been productive of occupational and social impairment with reduced reliability and productivity.



CONCLUSION OF LAW

The criteria for a 50 percent evaluation for PTSD are met.  38 U.S.C.A. §§ 1155, 5103, 5103A, 5107(b) (West 2002 & Supp. 2012); 38 C.F.R. §§ 4.1-4.14, 4.21, 4.125, 4.126, 4.130, Diagnostic Code 9411 (2012).



REASONS AND BASES FOR FINDING AND CONCLUSION

I.  Duties to Notify and Assist

The Veterans Clams Assistance Act of 2000 as amended (VCAA) and implementing regulations impose obligations on VA to provide claimants with notice and assistance.  38 U.S.C.A. §§ 5102, 5103, 5103A, 5107, 5126 (West 2002); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012).

Upon receipt of a substantially complete application for benefits, VA must notify the claimant what information or evidence is needed in order to substantiate the claim and it must assist the claimant by making reasonable efforts to get the evidence needed. 38 U.S.C.A. §§ 5103(a), 5103A (West 2002); 38 C.F.R. § 3.159(b); see Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002).  The notice required must be provided to the claimant before the initial unfavorable decision on a claim for VA benefits, and it 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; (3) inform the claimant about the information and evidence the claimant is expected to provide. 38 U.S.C.A. § 5103(a)  (West 2002); 38 C.F.R. § 3.159(b)(1); Pelegrini v. Principi, 18 Vet. App. 112, 120 (2004). 

In Dingess v. Nicholson, 19 Vet. App. 473 (2006), the United States Court of Appeals for Veterans Claims (Court) held that, upon receipt of an application for a service-connection claim, 38 U.S.C. § 5103(a)  and 38 C.F.R. § 3.159(b) require VA to review the information and the evidence presented with the claim and to provide the claimant with notice of what information and evidence not previously provided, if any, will assist in substantiating, or is necessary to substantiate, each of the five elements of the claim, including notice of what is required to establish service connection and that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. 

With regard to claims for increased disability ratings for service-connected conditions, the law requires VA to notify the claimant that, to substantiate a claim, the claimant must provide, or ask VA to obtain, medical or lay evidence demonstrating a worsening or increase in severity of the disability. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Vazquez- Flores v. Peake, 22 Vet. App. 37 (2008), vacated and remanded sub nom. Vazquez-Flores v. Shinseki, 580 F.3d 1270 (Fed. Cir. 2009).  The claimant must be notified that, should an increase in disability be found, a disability rating will be determined by applying relevant Diagnostic Codes, which typically provide for a range in severity of a particular disability from noncompensable to as much as 100 percent (depending on the disability involved), based on the nature of the symptoms of the condition for which disability compensation is being sought, their severity and duration.  Finally, the notice must provide examples of the types of medical and lay evidence that the Veteran may submit (or ask the VA to obtain) that are relevant to establishing her or his entitlement to increased compensation.  However, the notice required by section 5103(a) need not be specific to the particular Veteran's circumstances; that is, VA need not notify a Veteran of alternative diagnostic codes that may be considered or notify of any need for evidence demonstrating the effect that the worsening of the disability has on the particular Veteran's daily life. Vazquez-Flores v. Shinseki, 580 F.3d 1270 (Fed. Cir. 2009).  The notice must be provided prior to an initial unfavorable decision by the agency of original jurisdiction (AOJ). Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). 

Nevertheless, the Veteran in this case is challenging the initial evaluation assigned following the grant of service connection for PTSD.  In Dingess, the Court held that in cases where service connection has been granted and an initial disability rating and effective date have been assigned, the typical service-connection claim has been more than substantiated, it has been proven, thereby rendering section 5103(a) notice no longer required because the purpose that the notice is intended to serve has been fulfilled. Id. at 490-91. See also VAOPGCPREC 8-2003 (December 22, 2003).  Thus, VA's duty to notify has been satisfied with respect to the issues of entitlement to a higher initial evaluation for his PTSD.

In addition, the duty to assist the Veteran has also been satisfied in this case.  The Veteran's service treatment records and all identified and available post-service medical records pertinent to the years after service are in the claims file and were reviewed by both the RO and the Board in connection with the claim.  The Veteran has not identified any outstanding records that are relevant to the issue being decided herein. 

In addition, the Veteran was afforded VA examinations in December 2011 and March 2013 in connection with his claim.  The Board finds that the VA examinations in this case are adequate, as they are predicated on a review of the Veteran's medical history as well as on an examination and fully addresses the rating criteria that are relevant to rating the disability in this case.

Moreover, there is no objective evidence indicating that there has been a material change in the severity of the Veteran's service-connected disability since he was last examined. 38 C.F.R. § 3.327(a).  The duty to assist does not require that a claim be remanded solely because of the passage of time since an otherwise adequate VA examination was conducted. VAOPGCPREC 11-95. 

Thus, there is adequate medical evidence of record to make a determination as to the Veteran's PTSD.  Accordingly, the Board finds that VA's duty to assist with respect to obtaining a VA examination or opinion with respect to the issue on appeal has been met. 38 C.F.R. § 3.159(c)(4).

Neither the Veteran nor his representative has identified any potentially relevant records that are not already associated with the claims file.

For the reasons set forth above, the Board finds that VA has complied with the VCAA's notification and assistance requirements.  The claim for a higher evaluation for PTSD is thus ready to be considered.


II.  Law and Analysis

Disability evaluations are determined by application of the criteria set forth in the VA's Schedule for Rating Disabilities, which is based on average impairment in earning capacity.  38 U.S.C.A. § 1155; 38 C.F.R. Part 4.  An evaluation of the level of disability present must also include consideration of the functional impairment of the Veteran's ability to engage in ordinary activities, including employment.  38 C.F.R. § 4.10.  When a question arises as to which of two ratings apply under a particular diagnostic code, the higher evaluation is assigned if the disability more closely approximates the criteria for the higher rating.  38 C.F.R. § 4.7.  After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the Veteran.  38 C.F.R. § 4.3.

The Veteran's entire history is to be considered when making disability evaluations.  See generally 38 C.F.R. § 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1995). 

"Staged" ratings are appropriate for any rating claim when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings.  See Hart v. Mansfield, 21 Vet. App. 505 (2007); Fenderson v. West, 12 Vet. App 119 (1999).  As will be discussed in more detail below, the Board finds that the disability has remained essentially consistent in severity throughout the appeal period, and a uniform rating is warranted.

The Veteran is in receipt of a 30 percent rating for PTSD pursuant to 38 C.F.R. § 4.130, Diagnostic Code 9411.  This Diagnostic Code addresses PTSD.  However, all psychiatric disabilities are evaluated under a general rating formula for mental disorders.  Under the general rating formula, a 30 percent rating requires a showing of 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, and recent events).

A 50 percent rating is warranted 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 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 effective work and social relationships.

A 70 percent rating is warranted when the psychiatric disorder results in occupational and social impairment with deficiencies in most areas such as work, school, family relations, judgment, 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 an 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.

A total schedular rating of 100 percent is warranted when the disorder results in 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 mental and personal hygiene); disorientation to time or place; memory loss for names of close relatives, own occupation, or own name.

The list of symptoms under the rating criteria are meant to be examples of symptoms that would warrant the rating, but are not meant to be exhaustive, and the Board need not find all or even some of the symptoms to award a specific rating.  Mauerhan v. Principi, 16 Vet. App. 436, 442-43 (2002).  If the evidence shows that the Veteran suffers symptoms or effects that cause occupational or social impairment equivalent to what would be caused by the symptoms listed in the criteria for a particular rating, the appropriate equivalent rating will be assigned.  Id. at 443.

Furthermore, the rating code requires not only the presence of certain symptoms but also that those symptoms have caused occupational and social impairment at a level consistent with the assigned rating.  Vazquez-Claudio v. Shinseki, 713 F.3d 112, 116-17 (Fed. Cir. 2013).

When the symptoms attributable to a service-connected disability cannot be separated from those attributable to a non-service-connected disability, all symptomatology should be considered in determining the appropriate rating, and that has been done here.  Mittleider v. West, 11 Vet. App. 181, 182 (1998) (when it is not possible to separate the effects of the service-connected and non-service-connected disabilities, the benefit of the doubt doctrine described in 38 C.F.R. § 3.102 dictates that such signs and symptoms be attributed to the service-connected disability or disabilities).

The GAF (Global Assessment of Functioning) scale reflects psychological, social, and occupational functioning of a hypothetical continuum of mental health illness.  See Richard v. Brown, 9 Vet. App. 266, 267 (1996) (citing the Diagnostic and Statistical Manual of Mental Disorders (4th ed. 1994) (DSM-IV).  A GAF score of 51-60 denotes 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).  See Diagnostic and Statistical Manual of Mental Disorders, Fourth Edition, Washington, DC, American Psychiatric Association, 1994.

In December 2011, the Veteran underwent a VA examination.  A diagnosis of PTSD was given along with a GAF score of 58.  The examiner indicated that the Veteran had polysubstance dependence, which contributed to and exacerbated his symptoms of anxiety and depression.  The symptoms were overlapping and intermingled, and this made it difficult to differentiate the symptoms attributable to each diagnosis.  The examiner indicated that the criteria associated with a 10 percent best summarized the Veteran's level of occupational and social impairment.  His parents and two of three siblings were no longer living.  He reported a mixed relationship with his brother, which he currently attributed to his brother's wife.  He was divorced and had been married four times.  He attributed some of the divorces to his drinking and drug use, along with his anger.

The Veteran has five children.  He described his relationships with two of them as "pretty good."  He had strained relationships with two and no relationship with one.  He was currently unemployed.  His last job was in June 2011, when he operated a dump truck.  The job had lasted for seven years and ended because of physical problems and his desire not to deal with his coworkers anymore.  Prior to that time, he was employed for eleven years as an over-the-road truck driver.  He stated that he was fired because one of the other drivers complained that he was dangerous, and the Veteran became angry.  He had worked as a truck driver for 40 years.  He also reported being fired from one prior job due to violent and obsessive behavior, but he was not fired from other jobs.  While working, he had a positive relationship with his coworkers and described the relationship with his employers as "average."  He cited physical limitations as the primary restriction to current employment.

The Veteran denied having any suicidal or violent thoughts.  He also denied any hospitalizations for psychiatric reasons.  He then reported having passive suicidal thoughts, but denied a history of suicide attempt.  He expressed aggressive irritability, but denied having violent or assaultive types of behavior.  He also denied current alcohol or marijuana use.  He reported a history of intravenous drug use and reported abusing prescription medications.  While he had weapons in the house, he indicated that it was because he liked to hunt and fish.  He stated that he was not a violent person.

The Veteran further reported poor sleep and irritability.  He noted that he stayed in his house and hunted and fished.  He had one friend with whom he hunted, and he stated that he tried to be a good neighbor and help other people out.  The Veteran also manifested recurrent distressing dreams and thoughts of war, avoidance behavior, markedly diminished interest in activities, feelings of detachment from others, restricted range of affect, difficulty concentrating, hypervigilance, exaggerated startle response, depressed mood, anxiety, difficulty establishing and maintaining effective work and social relationships.

In a January 2012 written statement, the Veteran asserted that he had flattened affect; circumstantial, circumlocutory, and stereotyped speech; panic attacks more than once a week; difficulty understanding complex commands; impairment of short- and long-term memory; impaired judgment, impaired abstract thinking, disturbance of motivation and mood, and difficulty in establishing and maintaining effective work and social relationships.

In March 2013, the Veteran underwent another VA examination during which a diagnosis of PTSD and a GAF score of 54 were noted.  The examiner indicated that the criteria associated with a 30 percent best summarized the Veteran's level of occupational and social impairment.  The Veteran was not currently married and had non-serious relationships with two or three women currently.  He had six children and described his relationships as "poor" and "a little below average."  He had not seen any of them in at least two years.  He had one older brother and described this relationship as "poor."  The Veteran last worked in 2010 as a truck driver.  He stated that he stopped working due to his back and knees, and he indicated that his primary limitations to employment were physical in nature.  He also denied hospitalization for psychiatric or mental health reasons.  He had fleeting suicidal thoughts once a week, and he had significant angry thoughts and impulsive and aggressive reactions to perceived threats.  He denied having a specified victim or homicidal ideation. The Veteran further described violent thoughts and dreams.  He reported having five friends and several acquaintances.  He did not trust his friends entirely.  His activities included hunting, fishing, and shooting.  He helped people who needed it.  He described his mood as particularly angry that day, as he was attending a funeral.  His mood most days was "not quite angry."

The Veteran's PTSD was manifested by recurrent recollections, avoidance behavior, markedly diminished interest in activities, feelings of detachment, restricted range of affect, sense of a foreshortened future, sleep difficulty, irritability, difficulty concentrating, hypervigilance, exaggerated startle response, anxiety, disturbances of motivation and mood, and difficulty in establishing and maintaining effective work and social relationships.

In an April 2013 written statement, the Veteran indicated that he manifested the criteria associated with a 50 percent rating and then noted that he should be rated at the 50 percent level because the severity of his PTSD met those criteria.

VA outpatient treatment records dated from March 2011 to the present contain symptomatology consistent with that contained on the VA examination reports and include GAF scores of 55 and 60.  In a February 2012 VA outpatient record, the Veteran indicated that he was able to turn off his irritability around his granddaughters and other family members.  A June 2012 VA outpatient report also shows that the Veteran, while retired, was planning on working on an as-needed basis to combat his boredom.  A September 2012 record further indicated that the Veteran recently had a friend visit for a few days and recognized that feeling connected with someone was a positive feeling.

Based on the record, the Board finds that a 50 percent rating is warranted.  The Veteran has endorsed the symptomatology associated with a 50 percent rating, and the March 2013 VA examiner, while first indicating that the Veteran manifested the symptoms associated with a 30 percent rating, then opined that the Veteran's PTSD was manifested by disturbances of motivation and mood and a difficulty in establishing and maintaining effective work and social relationships, which are both criteria used to assign a 50 percent rating.  As such, the Veteran's PTSD more nearly approximates the criteria for a 50 percent rating.  Therefore, an evaluation of 50 percent is assigned and, to this extent, the Veteran's claim is granted.

However, the Board also finds that the criteria for a 70 or 100 percent rating for PTSD are not met.  None of the lay or medical evidence of record suggests that the Veteran has ever demonstrated occupational and social impairment with deficiencies in most areas or total occupational or social impairment.

The Veteran has certainly described problems with his relationships with his family members.  However, he has maintained some contact with nearly all of them and told his social worker that he enjoyed time with his grandchildren.  At different times, he has reported that he has several friends, even if he did not trust them completely.  Furthermore, while he indicated that, prior to his retirement, he had some conflicts with coworkers, he also stated more than once that his physical problems were the main reason that he was no longer working.  In fact, the Veteran told his social worker in June 2012 that he planned on working part-time to combat his boredom.

Additionally, none of the lay or medical evidence suggests the presence of suicidal ideation in excess of fleeting thoughts; 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; or an inability to establish or maintain effective relationships.  While the Veteran reported significant irritability, he continually and consistently denied any violence associated with his irritability.  He reiterated during his December 2011 examination that his guns were for hunting and shooting and not due to thoughts of violence.

Furthermore, there is no evidence of 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, or memory loss for names of close relatives, own occupation, or own name.

Neither VA examiner documented any of the symptoms associated with 70 and 100 percent evaluations to the Veteran.  Moreover, the lowest GAF score assigned is 54, which is compatible with the 50 percent rating currently assigned to the Veteran's PTSD.  All other GAF scores are in excess of that number and denote functioning that is better than the criteria associated with a 70 or 100 percent evaluation.

The Veteran is certainly competent to report his symptomatology.  See Layno v. Brown, 6 Vet. App. 465, 469 (1994).  However, even he has not endorsed that he experiences nearly any of the manifestations corresponding to a 70 or 100 percent rating.  In fact, he has specifically stated that his disability warrants a 50 percent rating.

In reaching this decision, the potential application of various provisions of Title 38 Code of Federal Regulations have been considered, whether or not they were raised by the Veteran. Schafrath v. Derwinski, 1 Vet. App. 589 (1991).  In particular, the Board has considered the provisions of 38 C.F.R. § 3.321(b)(1).  However, in this case, the Board finds that the record does not show that the Veteran's PTSD is so exceptional or unusual as to warrant the assignment of a higher rating on an extra-schedular basis. See 38 C.F.R. § 3.321(b)(1).

The threshold factor for extraschedular 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. See Thun v. Peake, 22 Vet. App. 111 (2008).  In this regard, 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.  If the criteria reasonably describe the claimant's disability level and symptomatology, then the claimant's disability picture is contemplated by the rating schedule and the assigned schedular evaluation is therefore adequate, and no extraschedular referral is required. Id.; see also VAOGCPREC 6-96 (Aug. 16, 1996).  Otherwise, if the schedular evaluation does not contemplate the claimant's level of disability and symptomatology and is found inadequate, VA must determine whether the claimant's exceptional disability picture exhibits other related factors, such as those provided by the extraschedular regulation (38 C.F.R. § 3.321(b)(1)  ) as "governing norms" (which include marked interference with employment and frequent periods of hospitalization).

The evidence in this case does not show such an exceptional disability picture that the available schedular evaluation for the service-connected disability is inadequate.  A comparison between the level of severity and symptomatology of the Veteran's assigned rating with the established criteria found in the rating schedule shows that the rating criteria reasonably describe the Veteran's disability level and symptomatology.  Indeed, the 50 percent evaluation contemplates the overall effect of all of his symptomatology on his occupational and social functioning.  As discussed above, there are higher ratings available under the diagnostic code, but the Veteran's disability is not productive of such manifestations.

Based on the foregoing, the Board finds that the requirements for an extraschedular evaluation for the Veteran's service-connected PTSD under the provisions of 38 C.F.R. § 3.321(b)(1) have not been met. Bagwell v. Brown, 9 Vet. App. 337 (1996); Shipwash v. Brown, 8 Vet. App. 218 (1995); Thun v. Peake, 22 Vet. App. 111 (2008).

The Board concludes that the evidence supports a disability rating of 50 percent for PTSD throughout the appeal period.  However, the preponderance of the evidence is against assignment of a rating higher than 50 percent for PTSD, and, to that extent, the claim must be denied.  See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990).


ORDER

An evaluation of 50 percent for PTSD is granted, subject to the laws and regulations governing the payment of VA benefits.



____________________________________________
JESSICA J. WILLS
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs