Citation Nr: 1330666 Decision Date: 09/24/13 Archive Date: 09/30/13 DOCKET NO. 10-20 971 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in New York, New York THE ISSUES 1. Entitlement to a rating higher than 50 percent for posttraumatic stress disorder (PTSD) before October 6, 2008. 2. Entitlement to a rating higher that 70 percent for PTSD from October 6, 2008. REPRESENTATION Veteran represented by: New York State Division of Veterans' Affairs WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD J. Meawad, Counsel INTRODUCTION The Veteran, who is the Appellant, served on active duty from December 1999 to July 2006. This matter is before the Board of Veterans' Appeals (Board) on appeal of a rating decision in March 2009 of a Department of Veterans Affairs (VA) Regional Office (RO). While on appeal in a rating decision in March 2010, the RO increased the rating for the PTSD to 50 percent, effective October 6, 2008. While on appeal in a rating decision in August 2012, the RO amended the effective date for the 50 percent rating to January 5, 2007. The RO then increased the rating for PTSD to 70 percent from October 6, 2008. In August 2011, the Veteran appeared at a hearing before a Veterans Law Judge, who has since retired from the Board. In December 2012 by letter, the Veteran was asked whether he wanted a second hearing with another VLJ, but the Veteran did not respond. And the Board is proceeding with appellate review without a second hearing In November 2011 and April 2013, the Board remanded the case for further development. As the requested development has been completed, no further action to ensure compliance with the Board's remand directives is required. Stegall v. West, 11 Vet. App. 268 (1998). In a statement in March 2013, the Veteran raised the claim for increase for a hiatal hernia, which is referred to the RO for appropriate action. FINDINGS OF FACT 1. Before October 6, 2008, posttraumatic stress disorder was manifested by occupational and social impairment with reduced reliability and productivity under the General Rating Formula for Mental Disorders, including the symptoms associated with the diagnosis of posttraumatic stress disorder under the Diagnostic and Statistical Manual of Mental Disorders, Fourth Edition, (DSM-IV) of the American Psychiatric Association, which is referred to in 38 C.F.R. § 4.130 (rating mental disorders), but not covered in the rating criteria. 2. From October 6, 2008, posttraumatic stress disorder has been manifested by occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood under the General Rating Formula for Mental Disorders, including the symptoms associated with the diagnosis of posttraumatic stress disorder under the Diagnostic and Statistical Manual of Mental Disorders, Fourth Edition, (DSM-IV) of the American Psychiatric Association, which is referred to in 38 C.F.R. § 4.130 (rating mental disorders), but not covered in the rating criteria. CONCLUSIONS OF LAW 1. Before October 6, 2008, the criteria for a rating higher than 50 percent have not been met. 38 U.S.C.A. §§ 1155, 5107(b) (West 2002); 38 C.F.R. § 4.130, Diagnostic Code 9411 (2013). 2. From October 6, 2008, the criteria for a rating in excess of 70 percent have not been met. 38 U.S.C.A. §§ 1155, 5107(b) (West 2002); 38 C.F.R. § 4.130, Diagnostic Code 9411 (2013). The Veterans Claims Assistance Act of 2000 (VCAA) The VCAA, codified in part at 38 U.S.C.A. §§ 5103, 5103A, and implemented in part at 38 C.F.R § 3.159, amended VA's duties to notify and to assist a claimant in developing information and evidence necessary to substantiate a claim. Duty to Notify When VA receives a complete or substantially complete application for benefits, it will notify the claimant of the following: (1) any information and medical or lay evidence that is necessary to substantiate the claim, (2) what portion of the information and evidence VA will obtain, and (3) what portion of the information and evidence the claimant is to provide. Also, the VCAA notice requirements apply to all five elements of a service connection claim. The five elements are: (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. Dingess v. Nicholson, 19 Vet. App. 473 (2006). In a claim for increase, the VCAA notice requirements are the type of evidence needed to substantiate the claim, namely, evidence demonstrating a worsening or increase in severity of the disability and the effect that worsening has on employment. Vazquez-Flores v. Shinseki, 580 F.3d 1270 (Fed. Cir. 2009) (interpreting 38 U.S.C.A. § 5103(a) as requiring generic claim-specific notice and rejecting Veteran-specific notice as to effect on daily life and as to the assigned or a cross-referenced Diagnostic Code under which the disability is rated). The VCAA notice must be provided to a claimant before the initial unfavorable adjudication by the RO. Pelegrini v. Principi, 18 Vet. App. 112 (2004). The RO provided pre-adjudication VCAA notice by a letter dated in October 2008. As for the content and the timing of the VCAA notice, the document complied with the specificity requirements of Quartuccio v. Principi, 16 Vet. App. 183, 186-87 (2002) (identifying evidence to substantiate a claim and the relative duties of VA and the claimant to obtain evidence); of Charles v. Principi, 16 Vet. App. 370, 374 (2002) (identifying the document that satisfies VCAA notice); of Pelegrini v. Principi, 18 Vet. App. 112, 119-120 (2004) (pre-adjudication VCAA notice); of Dingess v. Nicholson, 19 Vet. App. 473, 484-86 (2006) (notice of the elements of a claim); and of Vazquez-Flores v. Shinseki, 580 F.3d 1270 (Fed. Cir. 2009) (evidence demonstrating a worsening or increase in severity of the disability and the effect that worsening has on employment). Duty to Assist Under 38 U.S.C.A. § 5103A, VA must make reasonable efforts to assist a claimant in obtaining evidence necessary to substantiate a claim. The RO has obtained VA and private medical records. The Veteran was afforded VA examinations in March 2007, in December 2008, and in December 2011. As the examination reports are based on review of the Veteran's history and described the disability in sufficient detail so that the Board's review is a fully informed one, the examination reports are adequate to decide the claim. See Stefl v. Nicholson, 21 Vet. App. 120, 124-25 (2007) (holding an examination is considered adequate when it is based on consideration of the appellant's prior medical history and examinations and also describes the disabilities in sufficient detail so that the Board's evaluation of the disability will be a fully informed one). As there is no indication of the existence of additional evidence to substantiate the claim, the Board concludes that no further assistance to the Veteran in developing the facts is required to comply with the duty to assist. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Principles for Rating Disabilities A disability rating is determined by the application of VA's Schedule for Rating Disabilities (Rating Schedule). 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 their residual conditions in civil occupations. Separate Diagnostic Codes identify the various disabilities. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. If there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. The Board will consider whether separate ratings may be assigned for separate periods of time based on facts found, a practice known as "staged ratings," whether it is an initial rating case or not. Fenderson v. West, 12 Vet. App. 119, 126-27 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). Rating Criteria Posttraumatic stress disorder has been rated 50 percent before October 6, 2008, and 70 percent from October 6, 2008, under 38 C.F.R. § 4.130, the General Rating Formula for Mental Disorders, Diagnostic Code 9411. Under the General Rating Formula for Mental Disorders, Diagnostic Code 9411, the criteria for a 50 percent rating are 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; and difficulty in establishing and maintaining effective work and social relationships. Under the General Rating Formula for Mental Disorders, Diagnostic Code 9411, the criteria for a 70 percent rating are occupational and social impairment, with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood, due to such symptoms as: suicidal ideation; obsessional rituals which interfere with routine activities; speech intermittently illogical, obscure, or irrelevant; near-continuous panic or depression affecting the ability to function independently, appropriately and effectively; impaired impulse control (such as unprovoked irritability with periods of violence); spatial disorientation; neglect of personal appearance and hygiene; difficulty in adapting to stressful circumstances (including work or a work like setting); inability to establish and maintain effective relationships. Under the General Rating Formula for Mental Disorders, Diagnostic Code 9411, the criteria for a 100 percent rating are 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 of 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. Ratings are assigned according to the manifestation of particular symptoms, but the use of the term "such as" in the General Rating Formula demonstrates that the symptoms after the 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 from posttraumatic stress disorder under 38 C.F.R. § 4.130 is not restricted to the symptoms provided in Diagnostic Code 9411. Rather VA must consider all symptoms of a claimant's condition that affect the level of occupational and social impairment, including, if applicable, those identified with the diagnosis of posttraumatic stress disorder in DSM-IV (American Psychiatric Association: Diagnostic and Statistical Manual of Mental Disorders (4th ed. 1994)). The Global Assessment of Functioning (GAF) score is a scale reflecting the "psychological, social, and occupational functioning in a hypothetical continuum of mental health- illness." DSM-IV at 32. A GAF score of 51 to 60 indicates that the examinee has 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 co-workers). A GAF score of 41 to 50 indicates that the examinee has serious symptoms (e.g., suicidal ideation, severe obsessional rituals, frequent shoplifting) or serious impairment in social, occupational, or school functioning (e.g. no friends, unable to keep a job). Neither the number of symptoms, nor the type of symptoms, nor the GAF score controls in determining whether the criteria for the next higher rating have been met. It is the effect of the symptoms, rather than the presence of symptoms, pertaining to the criteria for the next higher rating, that is determinative. Facts and Analysis A Rating before October 6, 2008 On VA examination in March 2007, the Veteran stated that he was a full-time student working towards a degree in safety management. He stated that he was separated from his wife and that he had two sons who lived with their mother and whom he saw regularly. He stated that he was recently fired from his job due to problems with short-term memory. He indicated that he was regularly seen for his mental health problems and he was taking medication. He indicated that he had not been hospitalized for PTSD and he had not attempted suicide. On mental status examination, the Veteran was described as neat and groomed. Sensorium appeared intact. Speech was somewhat rapid and pressured, which was attributed to mild anxiety, but it was relevant, coherent, and productive. Thought processes were rational and goal directed and there was no evidence of hallucinations or delusions, specific obsessions, compulsions, phobia, or ritualistic behaviors. The Veteran was oriented and he did well with simple short-term memory tasks, but was unable to successfully complete a simple concentration task during the examination indicating difficulty in completing tasks that may be as much a function of impaired concentrations as short-term memory. His intellectual skills were above-average. His affect was appropriate. His mood was anxious, but overtly pleasant. The VA examiner described the Veteran's symptoms as moderate. The VA examiner stated that the Veteran experienced hyperarousal, startle response, and nightmares five times a week. The VA examiner stated that the Veteran also had recurring intrusive thoughts, memories, and recollections of the in-service stressors and the Veteran had problems with anger and impaired impulse control. The Veteran was not suicidal or homicidal and there was no indication of clinical depression. Insight and judgment were good. The VA examiner stated that the Veteran was not totally unemployable, but the Veteran did present with some work-related limitations caused by posttraumatic stress disorder and the symptoms were moderate and disruptive. The diagnosis was chronic posttraumatic stress disorder, moderate. The GAF score of 58. VA records from January to April 2007 showed that the Veteran was well-groomed and fully oriented. There were no hallucinations or delusions and no suicidal or homicidal ideation. The Veteran engaged appropriately in therapy and he showed no circumstantiality or tangentiality. The Veteran was treated for anxiety and anger and nightmares. In January 2007, the Veteran stated that he was divorced from his first wife and legally separated from his second wife, and currently living with a girl friend whom he had been with for the last six years. He indicated that he had a son with each wife and he saw his sons every other week. The Veteran's symptoms were similar to the symptoms described on VA examination in March 2007. The GAF score was 56. In April 2007, it was noted that the Veteran appeared anxious with psychomotor agitation and anxious laughter. He stated he found possible work, but complained of ongoing sleep disturbance. In August 2007 the Veteran was struggling with nightmares. The Veteran was described as a pleasant, but angry, who needed therapy. Reconciling the various reports into a consistent disability picture, two elements of the present disability emerge. First, the Veteran has symptomatology that is associated with the rating criteria and symptomatology not covered in the rating criteria, but is associated with the diagnosis of posttraumatic stress disorder under the DSM-IV, which is referred to in 38 C.F.R. Part 4, § 4 .130 (rating mental disorders). And two, the Veteran's overall severity of symptoms associated with posttraumatic stress disorder had remained constant without material change before October 6, 2008. As for occupational impairment, there is evidence that symptoms of posttraumatic stress disorder were a factor in the Veteran's occupational functioning, namely, difficulty concentrating and having problems with short-term memory. As for social impairment, the Veteran was divorced from his first wife and separated from his second wife, but he had regular contact with his sons and was in a long term relationship with another woman for six years. The Veteran did suffer from sleep disturbance, hyperarousal, startle response, nightmares, recurring intrusive thoughts and memories, recollections caused by several triggers, rapid and pressured speech, impaired concentration, short-term memory problems, anxious mood, and mildly impaired impulse control. And the VA examiner and mental health practitioners have described the Veteran's posttraumatic stress disorder as moderate. The Veteran was in individual therapy and the GAF scores were 56 and 58 indicating moderate symptoms or moderate difficulty in occupational and social functioning. Overall, the symptoms of posttraumatic stress disorder resulted in a disability picture demonstrating occupational and social impairment with reduced reliability and productivity due to such symptoms as impairment of short term memory, impaired judgment, disturbances of motivation and mood, and difficulty in establishing and maintaining effective work relationships. Although the Veteran had problems due to impaired impulse control, which is listed in the criteria for the next higher rating, and the Veteran's had symptoms attributable to posttraumatic stress under DSM- IV, such as irritability, intrusive thoughts, and hypervigilance, the symptoms do not more nearly approximate or equate to 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 interfered with routine activities, illogical or irrelevant a speech, near-continuous panic attacks or depression affecting the ability to function independently, spatial disorientation, neglect of personal appearance and hygiene, difficulty in adapting to stressful circumstances, or the inability to establish and maintain effective relationships. Before October 6, 2008, the preponderance of the evidence is against a rating higher than 50 percent at any time. A Rating from October 6, 2008 On VA examination in December 2008, the Veteran's symptoms were noted as having increased despite treatment. The Veteran complained of continued sleep disturbance with nightmares. The Veteran stated that the increased symptoms interfered with school as he was doing poorly, compared to what he had done in the previous year. On mental status examination, the Veteran was described as quite anxious throughout the interview. He was anhedonic, although spontaneous and spoke in a fluent and relevant manner. His memory was disturbed and distractible, but his remote memory was intact. There were no delusions or hallucinations. He was oriented. He did have problems with impulse control, but he did not act out, because he did not want to lose his job. The Veteran complained of depression. He admitted to suicidal and homicidal ideation without a plan or intent. He denied manic or hypomanic behaviors, but did panic in crowds. The Veteran suffered from intrusive thoughts, increased nightmares, extreme flashbacks triggered by certain sounds, diminished interest in activities, detachment, difficulty sleeping, irritable, difficulty concentrating, hypervigilant, and exaggerated startle response. The VA examiner stated that posttraumatic stress disorder had a great impact on the Veteran's social functioning. The diagnosis was chronic posttraumatic stress disorder, moderate to severe. The GAF score was 54. In July 2009 on psychosocial assessment, the Veteran stated that he was currently working as a veterans counselor and enjoyed his work. He was also a fire fighter. He stated that his anger and irritability negatively impacted his relationship with his two sons, whom he saw every other weekend. He had a limited social support network. Records of a VA Vet Center from January 2010 to October 2012 show that the Veteran's symptoms of posttraumatic stress disorder interfered with work and family relations, including with his new wife. In January 2010, the Veteran's symptoms were found to have increased in severity. The GAF score was 50. In March 2011, the Veteran was hospitalized for symptoms of posttraumatic stress disorder. In August 2011 it was noted that the Veteran struggled with concentration due to thoughts of his military experiences, suicidal ideations, and obsessive thoughts, resulting in sleep disturbance. The Veteran also had symptoms of obsessive-compulsive behavior, panic attacks, impaired impulse control, a lack of personal hygiene, and difficulty going to public places. On VA examination in December 2011, the VA examiner indicated that the Veteran's disability caused 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, or symptoms controlled by continuous medication and also 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. The VA examiner noted that the Veteran was being treated at a Vet Center and was taking medication to control his symptoms, but still experienced posttraumatic symptoms. The symptoms were similar to the symptoms described on VA examination in December 2008, except that the Veteran also had near-continuous panic or depression that affected his ability to function independently. The VA examiner stated that the Veteran symptoms have worsened over the last year and had caused a negative impact on the Veteran's family and social relations as shown by his current separation from his newly married wife, but did not impact the Veteran's ability to secure and to maintain employment as the Veteran had been employed full time since 2009. The GAF score was 50. The Veteran has symptomatology that is associated with the rating criteria and symptomatology not covered in the rating criteria, but is associated with the diagnosis of posttraumatic stress disorder. And two, the overall severity of symptoms had remained constant since October 6, 2008. As for occupational impairment, there is evidence that symptoms of posttraumatic stress disorder affect employment, but the Veteran has worked full time since 2009. Although the Veteran is divorced from his first two wives and he has a strain relationship with his third wife and his two sons, total social impairment is not shown. Although the Veteran has occupational and social impairment, symptoms 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, memory loss for names of close relatives, own occupation or own name, the criteria for the next higher rating have not been demonstrated. Although the Veteran has symptoms attributable to posttraumatic stress under DSM- IV, the symptoms do not more nearly approximate or equate to occupational and social impairment with persistent symptoms of delusions or hallucinations on the basis of a single hospitalization or to the intermittent inability to perform activities of daily living, including maintenance of minimal personal hygiene. For these reasons, the preponderance of the evidence is against a rating higher than 70 percent from October 6, 2008. Extraschedular Consideration Although the Board is precluded by regulation from assigning an extraschedular rating under 38 C.F.R. § 3.321(b)(1) in the first instance, the Board is not precluded from considering whether the case should be referred to the Director of VA's Compensation and Pension Service for a rating. The threshold factor for extraschedular consideration is a finding that the evidence presents such an exceptional disability picture that the available schedular ratings for the service-connected disability are inadequate. This is accomplished by comparing the level of severity and symptomatology of the service-connected disability with the established criteria. If the criteria reasonably describe the disability levels and symptomatology, then the disability picture is contemplated by the Rating Schedule, and the assigned ratings are adequate and referral for an extraschedular rating is not required. Thun v. Peake, 22 Vet. App. 111, 115 (2008), aff'd sub nom. Thun v. Shinseki, 572 F.3d 1366 (Fed. Cir. 2009). Comparing the Veteran's disability levels and symptomatology to the Rating Schedule, the degree of disability is encompassed by the Rating Schedule and the assigned schedule ratings are adequate. In other words, the Board finds that the rating criteria reasonably describe the Veteran's disability and symptomatology, and the Veteran does not have any symptomatology not already encompassed by the Rating Schedule. For this reason, referral for an extraschedular rating is not warranted under 38 C.F.R. § 3.321(b)(1). Total Disability Rating for Compensation based on Individual Unemployability The Veteran has not raised the claim for a total disabled rating for compensation based on individual unemployability and the claim is not reasonably raised by the record as the Veteran is working. See Rice v. Shinseki, 22 Vet. App. 447 (2009) (in a claim for increase, where the Veteran expressly raises a claim for a total disability rating on the basis of individual unemployability or the claim is reasonably raised by the record, the claim is not a separate claim, but a part of a claim for increase). ORDER A rating higher than 50 percent for posttraumatic stress disorder before October 6, 2008, is denied. A rating higher than 70 percent for posttraumatic stress disorder from October 6, 2008, is denied. ____________________________________________ George E. Guido Jr. Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs