Citation Nr: 1330483 Decision Date: 09/23/13 Archive Date: 09/30/13 DOCKET NO. 05-13 526 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Muskogee, Oklahoma THE ISSUE Entitlement to an evaluation in excess of 30 percent for posttraumatic stress disorder (PTSD) prior to November 9, 2007. REPRESENTATION Appellant represented by: Attorney Penelope E. Gronbeck WITNESSES AT HEARING ON APPEAL Appellant and L.S. ATTORNEY FOR THE BOARD Scott Shoreman, Counsel INTRODUCTION The Veteran had active service from June 1954 to June 1984. This matter comes before the Board of Veterans' Appeals (Board) from a May 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Muskogee, Oklahoma. The Veteran testified in November 2011 before the undersigned Veterans Law Judge at a Travel Board hearing at the above VARO; a transcript is of record. In July 2013 the Veteran's representative requested that the Veteran be scheduled for another hearing. At the time of the November 2011 hearing the Veteran was represented by another attorney from the same firm as his current attorney. Good cause has not been shown as to why the Veteran should be granted another hearing, see 38 C.F.R. § 20.1304(b) (2013), and the Board will proceed to a decision on the merits. FINDINGS OF FACT Prior to November 9, 2007, the Veteran's PTSD symptoms were productive of occupational and social impairment with reduced reliability and productivity due to various symptoms. CONCLUSION OF LAW The criteria for an evaluation of 50 percent, and not greater, for PTSD were met prior to November 9, 2007. 38 U.S.C.A. §§ 1155, 5103A (West 2002); 38 C.F.R. §§ 3.321(b)(1), 4.1, 4.7, 4.10, 4.14, 4.21, 4.130, Diagnostic Code 9411 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Duties to Notify and Assist As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012). Proper notice from VA must inform the claimant of any information and medical or lay evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide. Quartuccio v. Principi, 16 Vet. App. 183 (2002). This notice must be provided prior to an initial unfavorable decision on a claim by the RO. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). In addition, the notice requirements of the VCAA apply to all five elements of a service-connection claim, including: (1) Veteran status; (2) existence of a disability; (3) a connection between the Veteran's service and the disability; (4) degree of disability; and (5) effective date of the disability. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). Further, this notice must include information that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. Id. at 486. Here, the VCAA duty to notify was satisfied by way of a letter sent to the Veteran in July 2008 that fully addressed all notice elements after which the matter was re-adjudicated. No contention has been raised as to inadequate notice. Next, VA has a duty to assist a Veteran in the development of the claim. This duty includes assisting him in the procurement of service treatment records and other pertinent records, and providing an examination when necessary. See 38 U.S.C.A. § 5103A (West 2002); 38 C.F.R. § 3.159 (2013). The Board finds that all necessary development has been accomplished, and therefore appellate review may proceed without prejudice to the appellant. See Bernard v. Brown, 4 Vet. App. 384 (1993). The claims file contains service treatment records, VA treatment records, and private treatment records, and reports of examinations arranged through VA QTC Services. Findings from the examination reports are adequate for the purposes of deciding the claims on appeal. See Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007). The Veteran has been afforded a hearing before a VLJ in which he presented oral argument in support of his claim. 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) (2010) requires that the VLJ who chairs a hearing fulfill two duties to comply with the above the regulation. These duties 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. Here, during the hearing, the VLJ asked specific questions directed at identifying whether the Veteran had symptoms meeting the schedular criteria for a higher rating. The VLJ did not specifically seek to identify any pertinent evidence not currently associated with the claims. This was not necessary, however, because the Veteran volunteered his treatment history and his symptoms. Accordingly, the Veteran is not shown to be prejudiced on this basis. Finally, neither the Veteran nor his representative has asserted that VA failed to comply with 38 C.F.R. § 3.103(c)(2), nor has he identified any prejudice in the conduct of the Board hearing. By contrast, the hearing focused on the elements necessary to substantiate the claim, and the Veteran, through his testimony, demonstrated that he had actual knowledge of the elements necessary to substantiate his claim. 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). Therefore, the Board concludes that all reasonable efforts were made by VA to obtain evidence necessary to substantiate the Veteran's claim, and no further assistance to develop evidence is required. II. Increased Ratings Disability ratings are based upon VA's Schedule for Rating Disabilities as set forth in 38 C.F.R. Part 4 (2013). The percentage ratings represent as far as can practicably be determined the average impairment in earning capacity in civil occupations. 38 U.S.C.A. § 1155 (2002). The disability must be viewed in relation to its history. 38 C.F.R. § 4.1 (2013). A higher evaluation shall be assigned where the disability picture more nearly approximates the criteria for the next higher evaluation. 38 C.F.R. § 4.7 (2013). The General Rating Formula for Mental Disorders at 38 C.F.R. § 4.130 provides the following ratings for psychiatric disabilities: Occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks (although generally functioning satisfactorily, with routine behavior, self-care, and conversation normal), due to such symptoms as: depressed mood, anxiety, suspiciousness, panic attacks (weekly or less often), chronic sleep impairment, mild memory loss (such as forgetting names, directions, recent events), a 30 percent rating. Occupational and social impairment with reduced reliability and productivity due to such symptoms as: flattened affect; circumstantial, circumlocutory, or stereotyped speech; panic attacks more than once a week; difficulty in understanding complex commands; impairment of short- and long-term memory (e.g., retention of only highly learned material, forgetting to complete tasks); impaired judgment; impaired abstract thinking; disturbances of motivation and mood; difficulty in establishing and maintaining effective work and social relationships, a 50 percent rating. 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, a 70 percent rating. 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, a 100 percent rating. 38 C.F.R. § 4.130. The Veteran is seeking an evaluation in excess of 30 percent prior to November 9, 2007, which was the date a statement was received where the Veteran indicated his condition had "gotten worse." Private treatment records from November 2006 indicate that the Veteran persistently reexperienced a rocket attack in Vietnam through nightmares and that it had worsened since the Iraq war began. He avoided war news, had lost interest in his usual activities, and felt detached. The Veteran had no social life and kept himself isolated at work. He also had persistent insomnia, for which he took medication, and outbursts of anger. The Veteran's mood was described as severely depressed, and anxious and he was hypervigilant. Thought process was coherent, logical and goal directed, but the Veteran described severe anxiety and believed that someone was plotting against him, but did not know who. He denied suicidal or homicidal thoughts and insight and judgment were fair. The diagnosis was PTSD, chronic, with delayed onset, and major depression, single episode, severe. He was assigned a GAF score of 40. At May 2007 VA group anger management treatment the Veteran did not indicate suicidal or homicidal ideation. He actively participated, was cooperative, and was oriented to time, place and person. At June 2007 treatment the Veteran reported that he used to push people away with his anger. He realized that he needed people and could reach out for help. At July 2007 individual treatment the Veteran reported that his sleep was "so so" and his appetite okay, and he was oriented to time, place and person. The Veteran was cooperative, eye contact was good, and he was in good touch with reality. There was no psychomotor retardation or agitation. Speech was within normal limits in rate, rhythm and tone. His mood was irritable with congruent affect and no mania or hypomania was noted. Thought process was goal directed, linear and logical without any flight of ideas, looseness of associations, paranoia, delusions, bizarre thoughts, tangentiality or circumstantiality. The Veteran did not have suicidal or homicidal ideation. Insight and judgment were good and memory was intact. He was assigned a Global Assessment of Functioning (GAF) score of 55. The Veteran reported at September 2007 VA treatment that he was not doing well. He was getting more irritable and had difficulty at work and outbursts of anger. There was no suicidal or homicidal ideation, his sleep was disturbed, and his appetite was poor. On a mental status examination the Veteran was oriented to time, place and person. Speech was within normal limits in rate, rhythm, volume, and tone, mood was irritable, and affect was mood congruent. Thought process was goal directed and linear and there were no flight of ideas, looseness of association or delusions. The Veteran denied active suicidal or homicidal ideation or hallucinations. Insight and judgment were good and memory was intact. The Veteran was assigned a GAF score of 60. A GAF score is an indicator of the examiner's assessment of the individual's overall functioning. A GAF score between 41 and 50 contemplates a level of impairment of 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). A GAF score between 51 and 60 contemplates 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). American Psychiatric Association Diagnostic and Statistical Manual of Mental Disorders (4th. ed., 1994) (DSM-IV). In reviewing the record, the Board notes that the treatment records show that prior to November 9, 2007 the Veteran's PSTD was characterized by disturbances in motivation and mood and difficulty in establishing and maintaining effective work and social relationships. The November 2006 private treatment notes indicate that the Veteran had become isolated due to his PTSD symptoms and the VA treatment records from the following year indicate problems with anger management. The November 2006 treating psychiatrist noted that the Veteran's mood was severely depressed and anxious, and the assigned GAF score of 40 was indicative of serious symptoms. At the November 2011 hearing the Veteran reported that his nightmares began again after seeing a photograph of five American soldiers who had been killed and that this led him to have problems getting along with coworkers. Furthermore, the Veteran had lost interest in hobbies such as fishing and did not socialize much. After reviewing the evidence of record, the Board concludes that the Veteran's psychiatric disability picture more closely approximated the criteria for a 50 percent schedular rating, and no higher, prior to November 2007. While the evidence shows reduced reliability and some problems with interpersonal relationships, it does not suggest that his PTSD symptoms were of such severity to warrant a rating of 70 percent or higher. The record does not reflect any impairment of thought process or communication, inappropriate behavior, actual danger of hurting himself or others, or an inability to perform the routine activities of daily living. The treatment notes consistently indicate that the Veteran did not have suicidal or homicidal thoughts or impaired insight and judgment, he was consistently oriented to time, place and person. Furthermore, the Veteran did not demonstrate symptoms such as, obsessional rituals which interfere with routine activities; intermittent, illogical, obscure, or irrelevant speech; near-continuous panic or depression affecting the ability to function independently, appropriately and effectively; impaired impulse control; disorientation; neglect of personal appearance and hygiene; difficulty in adapting to stressful circumstances, or an inability to establish and maintain effective relationships. While the Veteran's PTSD has caused him to isolate himself, the record shows that he has been able to maintain his relationship with his wife and children and that he occasionally socialized. In exceptional cases an extraschedular rating may be provided. 38 C.F.R. § 3.321. The Court has set out a three-part test, based on the language of 38 C.F.R. § 3.321(b)(1), for determining whether a Veteran is entitled to an extraschedular rating: (1) the established schedular criteria must be inadequate to describe the severity and symptoms of the claimant's disability; (2) the case must present other indicia of an exceptional or unusual disability picture, such as marked interference with employment or frequent periods of hospitalization; and (3) the award of an extraschedular disability rating must be in the interest of justice. Thun v. Peake, 22 Vet. App. 111 (2008), aff'd, Thun v. Shinseki, 572 F.3d 1366 (Fed. Cir. 2009). The Board finds that the rating criteria contemplate the severity of the Veteran's PTSD, since the symptoms they set forth are not all inclusive, and no exceptional or unusual disability picture is demonstrated. The rating criteria are therefore adequate to evaluate the service-connected PTSD and referral for consideration of an extraschedular rating is not warranted. Lastly, the Board notes that notes that, in Rice v. Shinseki, 22 Vet. App. 447 (2009), the Court held that a claim of entitlement to a total rating based upon individual unemployability (TDIU) is part of an increased rating claim when such claim is expressly raised by the Veteran or reasonably raised by the record. The Court further held that when evidence of unemployability is submitted at the same time that the Veteran is appealing the initial rating assigned for a disability, the claim for TDIU will be considered part and parcel of the claim for benefits for the underlying disability. Id. In this case, however, the Veteran does not contend nor does the record reflect he was unemployable due to his service-connected PTSD. In fact, the record shows that prior to November 9, 2007 the Veteran was working full time in a job that he had had for over 20 years. While the record shows that there may be some interference with some job related activities due to the service-connected disabilities, there is no cogent evidence of unemployability and thus consideration of a TDIU is not warranted. ORDER An increased evaluation of 50 percent for PTSD prior to November 9, 2007, is granted, subject to VA laws and regulations pertaining to the payment of monetary benefits. ____________________________________________ MICHAEL E. KILCOYNE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs