Citation Nr: 1330614 Decision Date: 09/24/13 Archive Date: 09/30/13 DOCKET NO. 08-32 288 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE Entitlement to an initial disability rating in excess of 30 percent for Posttraumatic Stress Disorder (PTSD). REPRESENTATION Appellant represented by: Disabled American Veterans WITNESSES AT HEARING ON APPEAL Appellant and Appellant's Wife ATTORNEY FOR THE BOARD Antoinette Chance, Associate Counsel INTRODUCTION The Veteran served on active duty with the United States Army from November 1968 to October 1971, to include service in the Republic of Vietnam. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a February 2008 rating decision by the St. Petersburg, Florida, Regional Office (RO) of the United States Department of Veterans Affairs (VA), which granted service connection for PTSD and assigned a 30 percent disability rating effective from December 11, 2006 - the receipt date for the claim to reopen. In March 2008, the veteran submitted a Notice of Disagreement (NOD) with the February 2008 rating decision. In January 2010, the Veteran submitted lay evidence alleging that his conditioned had worsened. The Veteran provided testimony at an August 2011 hearing held before the undersigned; a transcript of the hearing is associated with the claims file. In November 2011, the Board considered the Veteran's appeal, prior to remanding the matter for additional development. The requested development having been completed, the matter again is before the Board. The Board notes that in addition to the paper claims file, there is a Virtual VA electronic claims file associated with the Veteran's claim. The Board has not only reviewed the Veteran's physical claims file, but also the electronic records maintained in the Virtual VA system to ensure a total review of the evidence. The Board has considered whether an inferred claim for a TDIU under Rice v. Shinseki, 22 Vet App. 447 (2009) has been raised due to the fact that the Veteran indicated during his August 2011 hearing that his PTSD affected his employment. The Board finds, however, that throughout the appeal period, the Veteran has maintained substantially gainful employment on a full-time basis. Therefore, the Board concludes that no inferred claim for a TDIU has been raised. FINDINGS OF FACT 1. The Veteran's PTSD is manifested by symptoms such as sleep impairment, hypervigilance, mild memory problems, isolated panic attacks, and depression, all resulting in mild social and occupational impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational task. Symptoms resulting in occupational and social impairment with reduced reliability and productivity has not been shown. 2. The rating criteria for mental disabilities reasonably describe the Veteran's disability level and symptomatology, and there are no unusual or exceptional factors that render the application of the schedular criteria standards impractical. CONCLUSIONS OF LAW 1. The criteria for an initial disability rating in excess of 30 percent for the Veteran's Posttraumatic Stress Disorder (PTSD) have not been met or approximated. 38 U.S.C.A. § 1155, 5107; 38 C.F.R. § 3.102, 4.130, Diagnostic Code 9411. 2. Application of the extraschedular rating provisions is not warranted in this case. 38 C.F.R. § 3.321(b). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duties to Notify and Assist 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; 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a). This appeal arises from the Veteran's disagreement with the initial evaluation following the grant of service connection for PTSD. 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. This duty includes assisting the Veteran in the procurement of service treatment records and pertinent treatment records and providing an examination when necessary. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. When VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate. 38 C.F.R. § 3.159(c) (4); Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). In the instant case, the claims file contains service treatment records, reports of VA post-service outpatient treatment from VAMC Gainesville from December 2006 through February 2012, and reports of VA examinations from June 2007 and February 2012. The Board has found nothing to suggest that there is any outstanding available evidence with respect to the Veteran's claims. See Pelegrini v. Principi, 18 Vet. App. 112 (2004); See also 38 U.S.C.A. § 5103A(a)-(c); 38 C.F.R. § 3.159. The Veteran has not indicated, and the record does not contain evidence, that he is in receipt of disability benefits from the Social Security Administration. 38 C.F.R. § 3.159(c)(2). Further, VA provided the Veteran PTSD examinations in June 2007 and February 2012 and obtained medical opinions as to the diagnosis and severity of the Veteran's PTSD. The record reflects, that the Veteran has challenged the adequacy of the February 2012 examination as being inadequate for rating purposes in a 2012 statement. Specifically, the Veteran alleges that the examiner was seated behind a desk that was positioned about 15-18 feet away from him, that most of the examiner's face and body was located behind the desk and computer screen, that the lighting was very bright, that the examination duration was only 1 hour, and that the overall examination was impersonal. However, the Board finds that there is no basis or indication that the examination was inadequate. The record reflects that the VA examiners on both occasions were clinical psychologists that expressed familiarity with the Veteran's disability picture, reviewed the contents of the Veteran's claims file, conducted required examinations, answered all the questions posed in the examination requests, and rendered opinions that are well-reasoned and consistent with the evidence of record. Therefore, the VA examinations are deemed to be adequate for rating purposes. As noted in the Introduction, the Veteran and his spouse testified at a hearing in August 2011 before the undersigned Veterans Law Judge (VLJ). During the Board hearing, the Veteran was assisted by an accredited representative from the Disabled American Veterans. The representative and the VLJ asked questions to ascertain the current extent and severity of his service-connected PTSD disability. The hearing focused on the elements necessary to substantiate the claim for an initial increased disability rating, and the Veteran, through his testimony, demonstrated that he had actual knowledge of the elements necessary to substantiate the claim. The Veteran has not contended that the VLJ did not comply with 38 C.F.R. § 3.103(c) and he has not contended that he was prejudiced in any way in the conduct of the hearing. Therefore, the Board finds that, consistent with Bryant v. Shinseki, 23 Vet. App. 488 (2010), the VLJ complied with the duties set forth in 38 C.F.R. § 3.103(c)(2). 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 his claims. Essentially, all available evidence that could substantiate the claim has been obtained. Accordingly, the Board will address the merits of the claims. Law and Regulations- Increased Rating for PTSD In evaluating the severity of a particular disability, it is essential to consider its history. 38 C.F.R. § 4.1; Peyton v. Derwinski, 1 Vet. App. 282 (1991). Where entitlement to compensation has already been established and an increase in the disability rating is at issue, the present level of disability is of primary importance. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Separate ratings may be assigned for separate periods of time based on the facts found, however. This practice is known as "staged" ratings." Hart v. Mansfield, 21 Vet. App. 505 (2007). If the evidence for and against a claim is in equipoise, the claim will be granted. A claim will be denied only if the preponderance of the evidence is against the claim. See 38 U.S.C.A. § 5107(West 2002); 38 C.F.R. §§ 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 56 (1990). 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 shall be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that evaluation. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. Disability evaluations are determined by the application of the facts presented to VA's Schedule for Rating Disabilities (Rating Schedule) at 38 C.F.R. Part 4. The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and the residual conditions in civilian occupations. 38 U.S.C.A. § 1155; 38 C.F.R. §§ 3.321(a), 4.1. When evaluating a mental disorder, the rating agency shall consider the frequency, severity, and duration of psychiatric symptoms, the length of remissions, and the Veteran's capacity for adjustment during periods of remission. The rating agency shall assign an evaluation based upon all the evidence of record that bears on occupational and social impairment, rather than solely upon the examiner's assessment of the level of disability at the moment of the examination. When evaluating the level of disability from a mental disorder, the rating agency will consider the extent of social impairment, but shall not assign an evaluation solely on the basis of social impairment. 38 C.F.R. § 4.126. Upon review, Diagnostic Code 9411 is deemed by the Board to be the most appropriate code primarily because it pertains specifically to the diagnosed disability in the Veteran's case (PTSD). In any event, with the exception of eating disorders, all mental disorders are rated under the same criteria in the rating schedule. Therefore, rating under another diagnostic code would not produce a different result. The General Rating Formula for Mental Disorders provides, in pertinent part: 30 percent- 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). 50 percent- 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. 70 percent- 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. 100 percent- 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 name. 38 C.F.R. § 4.130, Diagnostic Code 9411. Ratings are assigned according to the manifestation of particular symptoms. However, the use of the term "such as" in 38 C.F.R. § 4.130 demonstrates that the symptoms after that phrase are not intended to constitute an exhaustive list, but rather are to serve as examples of the type and degree of the symptoms, or their effects, that would justify a particular rating. Mauerhan v. Principi, 16 Vet. App. 436 (2002). Accordingly, the evidence considered in determining the level of impairment under § 4.130 is not restricted to the symptoms provided in the diagnostic code. Instead, VA must consider all symptoms of a Veteran's condition that affect the level of occupational and social impairment, including, if applicable, those identified in the DSM-IV (American Psychiatric Association Diagnostic and Statistical Manual of Mental Disorders (4th ed. 1994)). Id. Additionally, a Global Assessment of Functioning (GAF) score is often used by treating examiners to reflect the "psychological, social, and occupational functioning on a hypothetical continuum of mental health-illness." See Richard v. Brown, 9 Vet. App. 266 (1996). A GAF score is highly probative as it relates directly to the Veteran's level of impairment of social and industrial adaptability, as contemplated by the rating criteria for mental disorders. See Massey v. Brown, 7 Vet. App. 204, 207 (1994). GAF scores ranging between 61 to 70 reflect 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, and has some meaningful interpersonal relationships. See 38 C.F.R. § 4.130 [incorporating by reference the VA's adoption of the DSM-IV for rating purposes]. Analysis- Increased Rating for PTSD Initially, the Board notes that all of the evidence in the veteran claims file, with an emphasis on the evidence relevant to this appeal, has been reviewed. As discussed above, a February 2008 rating decision granted the Veteran service connection for PTSD and assigned a disability rating of 30 percent, effective December 11, 2006- the date of claim for service connection. The Veteran appeals that initial rating, contending that the 30 percent rating does not accurately depict the severity of his disability. The Veteran was initially afforded a VA examination in June 2007, which resulted in the grant of service connection (due to his combat military exposure) and a 30 percent disability rating in the February 2008 rating decision. During that examination, that Veteran reported that he had isolated and infrequent panic attacks that spontaneously occurred over the past 10 years and that he noticed a loss of interest, withdrawal, unhappiness and difficulty with initiative and motivation. Additionally, the Veteran reported mild memory loss and sleep impairment. The examiner opined that the symptoms were mild to moderate. The examination also revealed that the Veteran had completed his bachelor's degree post military, that he had 2 close friends but withdrew from social activities, that he belonged to an antique car club, that he was the American Legion Post Commander, and that he had been a Boy Scout leader for over 20 years. No suicidal attempts or a history of violence was indicated. Further, the examiner noted that the Veteran was cooperative, oriented, and attentive; however, anxious mood was indicated. The examiner opined that the Veteran experienced recurrent and intrusive distressing recollections and dreams of the combat events when exposed to internal or external cues that symbolize or resemble and aspect of the traumatic event and that his reduced reliability is mainly his withdrawal of activities and less interest in social functioning. Finally, the examiner rendered a diagnosis of PTSD with panic disorder without agoraphobia and assigned a GAF score of 60, which indicates a moderate impairment in social or occupational functioning. The Board notes that during the appellate period, other psychiatric diagnoses were indicated by examination reports. The Board has considered all symptomatology indicated regardless of whether they were able to be clinically attributed to the Veteran's service-connected PTSD. See 38 C.F.R. § 3.102; Mittleider v. West, 11 Vet. App. 181, 182 (1998). Due to the Veteran's appeal of the initial assigned disability rating and his January 2010 allegation of worsening, VA afforded him an additional examination in February 2012. The results of such examination confirmed a diagnosis of PTSD in partial remission. Further, the examiner opined that the Veteran had "occupational and social impairment due to mild or transient symptoms which decrease work efficiency and ability to perform occupational tasks only during periods of significant stress..." The examiner noted that the Veteran has depressed mood, anxiety, hypervigilance, and sleep impairment, among other symptoms, and that the symptoms are being controlled by prescribed medications. The examiner assigned a GAF score of 70, which indicates some mild symptoms or difficulty in social, occupational, or school functioning, but generally functioning pretty well and has some meaningful interpersonal relationships. During the examination, the Veteran reported that he has personal relationships with four best friends, that he has worked full time for the Florida Department of Transportation since 2008, that he receives good employment performance evaluations, that he has been married for 43 years, that he maintains relationships with four close friends, and that he has close attachments with his grandchildren. The record indicates that the Veteran received outpatient treatment at the Gainesville, VAMC from December 2006 through February 2012. These records reveal treatment for anxiety, panic attacks, and sleep disturbances which are being controlled by prescribed medications. Further, the records in March 2011 reveal that some of the anxiety was due to the Veteran's anticipated retirement. In support of his claim, the Veteran submitted a January 2010 statement alleging that his PTSD disability had worsened since his last examination in June 2007. Specifically, he contended that he has more difficulty sleeping, has nightmares, and that his medications were increased. The Veteran also offered testimony at an August 2011 Board Hearing, in which he contended, among other things, that he may have difficulty understanding complex commands, that he has memory loss because he forgets names and items associated with events for which he has well-prepared for, and that he does not match his clothing colors and has worn the same shirt repetitively before. While the Veteran is competent to report the symptomatology he is experiencing, a lay person, without supporting medical evaluation, is not competent to establish the level of severity of his psychiatric disability. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). The Veteran lacks the required knowledge and education to make a clinical determination of worsening. The Veteran has only offered subjective evidence that his PTSD has worsened and that he allegedly suffers from symptomatology indicative of a higher disability rating. Specifically, during his August 2011 hearing, he testified that he suffered from nearly all of the symptoms listed in the rating schedule for a 50 percent disability rating. However, when the June 2007 and the February 2012 VA examinations are compared, it appears that slight improvement was shown. For instance, the number of close personal relationships increased from two to four, the Veteran was still employed full time with the same employer and received good performance evaluations, and his GAF score increased from 60 to 70, indicating the presence of only mild symptoms currently. Furthermore, the February 2012 examiner opined that the Veteran's PTSD diagnosis was in partial remission. As stated above, a 50 percent evaluation for psychiatric disability 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-term 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. See 38 C.F.R. § 4.130. The VA examination reports do not tend to show this level of impairment. Indeed, while the Veteran complained of panic attacks in the course of the June 2007 examination, it documented that these occurred more than one time a week. In fact, it was noted that they were "isolated" and "infrequent". Also, the February 2012 examination report lacked any indication that the Veteran's panic attacks continued to occur. Additionally, none of the remaining symptoms indicative of a 50 disability rating were objectively demonstrated by the evidence of record. The Board acknowledges that a Veteran need not demonstrate the presence of all, most, or even some, of the symptoms listed as examples in the rating criteria. See Mauerhan, 16 Vet. App. at 442; however, as the Court held in Mauerhan, without the examples noted in the rating criteria differentiating a 30 percent evaluation from a 50 percent evaluation would be extremely ambiguous. The Board is to consider all symptoms of a Veteran's condition that affect the level of occupational and social impairment, including, if applicable, those identified in the DSM-IV. If the evidence demonstrates that a Veteran suffers symptoms or effects that cause occupational or social impairment equivalent to what would be caused by the symptoms listed in the DC, the appropriate equivalent rating should be assigned. Id. In this case, however, the Board concludes that the Veteran's PTSD symptoms do not cause occupational and social impairment with reduced reliability and productivity, as necessary to warrant a 50 percent rating. In fact, the February 2012 examination indicated that the Veteran's social and occupational abilities were only mildly impaired during times of significant stress. Again, the Veteran reported that he has successfully maintained full time employment since 2008 and receives positive performance evaluations regarding his work productivity. As such, the Board finds that based on the Veteran's work history, he does not have deficiencies in occupational functioning as contemplated for a 50 percent rating, nor occupational impairment warranting a 70 or 100 percent rating. As for social functioning and impairment, the Board observes that the Veteran alleges his group of friends is a lot smaller and that he does not prefer to be around people. However, the record reflects that the Veteran maintains close relationships with four friends, an increase since the June 2007 examination report, that he has been married 43 years, and that he has good relationships with his three children and three grandchildren. Following a review of the evidence of record, the greater weight of the evidence demonstrates that the Veteran's impairment, due to his service-connected PTSD, is contemplated by the 30 percent disability rating currently assigned. The overall disability picture is more consistent with that shown through medical evidence and more closely approximates the 30 percent rating. For the reasons stated herein, the Board finds that the Veteran's broad allegations of worsening and endurance of symptoms consistent with a higher disability rating have not been objectively demonstrated by the record as a whole, therefore, the VA examinations and treatment records are afforded greater probative weight than the Veteran's lay evidence. Therefore, the Board concludes that the symptoms and manifestations of his PTSD as shown during the VA examinations and the course of outpatient treatment, as well as based on statements by the Veteran, do not demonstrate a degree of disability that warrants assignment of a rating greater than 30 percent. See 38 C.F.R. § 4.7. Furthermore, the symptoms and manifestations shown throughout the Veteran's treatment are consistent throughout the pendency of this appeal. For this reason, staged ratings are not applicable. See Hart, 21 Vet. App. at 505. Extraschedular Consideration The Board has also considered whether referral for extraschedular consideration is indicated. Extraschedular consideration involves a three step analysis. Thun v. Peake, 22 Vet. App. 111 (2008). First, a determination must be made as to whether the schedular criteria reasonably describe a veteran's disability level and symptomatology. Id. at 115. If the schedular rating criteria do reasonably describe a veteran's disability level and symptomatology, referral for extraschedular consideration is not required and the analysis stops. Id. If the schedular rating criteria do not reasonably describe a veteran's level of disability and symptomatology, a determination must be made as to whether an exceptional disability picture includes other related factors, such as marked interference with employment and frequent periods of hospitalization. Id. At 116. If an exceptional disability picture including such factors as marked interference with employment and frequent periods of hospitalization exists, the matter must be referred to the Director of the Compensation for the third step of the analysis, determining whether justice requires assignment of an extraschedular rating. Id. With respect to the first prong of Thun, the evidence in this case does not show such an exceptional disability picture that the available schedular evaluations for the service-connected PTSD is inadequate. A comparison between the level of severity and symptomatology of the Veteran's PTSD with the established criteria shows that the rating criteria reasonably describe the Veteran's disability level and symptomatology. Specifically, the Veteran reports multiple psychiatric symptoms, some of which include sleep impairment, hypervigilance, mild memory problems, isolated panic attacks and depression. The current 30 percent rating contemplates these and other psychiatric symptoms. Thus, the Veteran's current schedular rating under DC 9411 is adequate to fully compensate him for his disability on appeal. In short, the rating criteria reasonably describe the Veteran's disability level and symptomatology. The Board, therefore, has determined that referral of this case for extraschedular consideration pursuant to 38 C.F.R. 3.321(b)(1) is not warranted. The preponderance of the evidence is against the Veteran's claim for increase, and thus, the benefit-of-the-doubt rule does not apply. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102, 4.3. Accordingly, the appeal in this matter must be denied. (Continued on next page.) ORDER Entitlement to an initial disability rating in excess of 30 percent for PTSD is denied. ____________________________________________ MICHAEL A. PAPPAS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs